315 East 65th Parking LLC v. 315 East 65th Owners Corp.
Rosenberg & Estis, P.C. successfully represented a long-term commercial garage tenant in its application for a Yellowstone injunction. In 2013, the landlord served a notice alleging that, in 2008, the tenant had failed to properly exercise its renewal option, and that as a result it was electing to terminate the tenant’s purported month-to-month tenancy. Rosenberg & Estis, P.C. established to the Court that it met the four-part Yellowstone test: the tenant (1) held a commercial lease, (2) was served with a notice threatening to terminate its tenancy, (3) sought injunctive relief prior to the expiration of the cure period set forth in the notice, and (4) was ready, willing and able to cure the alleged breach (assuming one were found after trial) by any means short of vacating the premises. In issuing the Yellowstone injunction, the Court found that the tenant had, in fact, properly exercised its lease renewal option. The Court further held that (1) by accepting rent for nearly five years since the allegedly improper lease renewal (including the stepped-up rent attributable to the renewal), the landlord may have waived any right to object to the allegedly improper renewal; and (2) because the landlord sat on its rights and collected rent for five years without notifying the tenant of its objection to the exercise of the renewal option, forfeiture of the tenant’s long-term lease would be unwarranted.
(Supreme Court, New York County; decided November 19, 2014)
(Rosenberg & Estis, P.C. team: Luise A. Barrack and Alexander Lycoyannis )