Tap, LLC v. 558 Seventh Ave. Corp., Jane Upton, as Sole Trustee of the Basil Schmookler and Jane Upton Revocable Trust, and Jane Upton, as Sole Trustee of the Morwin Schmookler Irrevocable Trust

Rosenberg & Estis, P.C. successfully secured an Appellate Division ruling that reverses the New York State Supreme Court and reinstates a client's motion for a Yellowstone injunction. R&E represented Tap, LLC, the commercial net-­‐ lessee and plaintiff in the proceeding against 558 Seventh Ave. Corp., before the Appellate Division, First Department. Due to R&E's efforts, the Appellate Division reinstated Tap, LLC's Complaint and motion for a Yellowstone injunction. Importantly, this occurred after a notice of termination expired in April 2015, after the landlord commenced a summary proceeding in civil court in May 2015, and after civil court granted summary judgment awarding a final judgment of possession against Tap, LLC in January 2016. R&E substituted into the litigation as counsel after the final judgment was entered, and was successful on appeal. R&E re-­‐argued the Civil Court decision, moved to clarify the prior Supreme Court orders and then appealed all of the Supreme Court orders. On the consolidated appeals, the Appellate Division ruled that the Supreme Court's August 2015 order dismissing the action was erroneous, and stated that the "court improperly resolved plaintiff's order to show cause seeking Yellowstone relief without applying the proper standard for such relief, and improperly dismissed the entire action, sua sponte, when there was no basis for the court to do so." As a result, The Appellate Division reopened the matter and reinstated the complaint and plaintiff's Yellowstone motion, remanding it to the Supreme Court "to consider whether, under the circumstances, plaintiff's Yellowstone injunction was timely filed ... and otherwise warranted on the merits."

(The Supreme Court, Appellate Division, First Department, Decided November 1, 2016)
(Rosenberg & Estis, P.C. Team: Michael A. Pensabene, Alexander Lycoyannis, and Ethan R. Cohen)