Preview
FILED: BRONX COUNTY CLERK 01/11/2024 03:57 PM INDEX NO. 800602/2024E
NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 01/11/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
_______....-----______----------____-_________________-----..____Ç
MARYA ABDUL SALAM AL HAJJADI, : INDEX NO.: 800602 /24
DBA 3029 CANDY AND ELECTRONICS CORP. :
: AFFIRMATION IN
Plaintiff, : SUPPORT OF
: ORDER TO SHOW CAUSE
-against- :
TOMBA REALTY LLC,
Defendant.
..._____.....____-.._______-....--.......________..____....____...._____..-x
The Undersigned Attorney and Counselor-at-Law, duly admitted to practice Law in the
Courts of the State of New York, affirms the following, subject to the penalties of perjury:
1. That your affiant is the Attorney for the Plaintiff, MARYA ABDUL SALAM AL
HAJJADI DBA 3029 CANDY AND ELECTRONICS CORP. ("Plaintiff"), and as such is fully
familiar with all of the facts and circumstances had herein.
2. That this Affirmation is submitted in support of the Plaintiff's motion for a
temporary restraining order and preliminary injunction, to maintain the status quo while this
matter is litigated between the parties.
3. That "The Court of Appeals has acknowledged that courts routinely grant
Yellowstone relief to reflect this State's policy against forfeiture, and courts have done so by
relief.'"
accepting 'far less than the normal showing required for preliminary injunctive Village
Ctr. v. Sligo Realty, 95 A.D.3d 219, 222, 943 N.Y.S.2d 11 (1st Dept. 2012), citing to Post v. 120
E. End Ave. Corp., 62 N.Y.2d 19, 25 (1984).
quo'
4. That "The purpose of a Yellowstone injunction is to maintain the 'status so
that the tenant served with a notice to cure an alleged lease violation may challenge the propriety
interest."
o the landlor s notice while protecting a valuable leasehold 1633 Broadway Mars
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Restaurant Corp. v. Paramount Group, Inc., 2007 N.Y. Slip Op 32193 (Sup. Ct. New York
County 2007) (internal citations omitted).
5. In P_ost, the Court of Appeals further noted that "An applicant rarely has been
required to demonstrate a likelihood of success, irreparable injury, and that the equities favored
preliminary relief as those terms are traditionally understood. Indeed, the courts have not
professed to require such evidence. The threat of termination of the lease and forfeiture, standing
injunction."
alone, has been sufficient to permit maintenance of the status quo by Post, 62
N.Y.2d at 25-26 (internal citations omitted).
6. That "it is a well-settled equitable principle that the courts do not look favorably
leases."
upon the forfeiture of Sharp v. Norwood, 223 A.D.2d 6 (1st Dept. 1996).
7. That the Plaintiff entered into a written lease ("Lease") with the Defendant, for
the property located at 2039 Middletown Road, Bronx, New York 10461, aka 1603 Hobart
"A."
Avenue, Bronx, New York 10461 ("Subject Premises"), see Exhibit
8. That the Defendant seeks to evict the Plaintiff, via a Notice to Cure, see Exhibit
"B."
9. That the Notice to Cure sets forth that the Lease will expire on January 12, 2024,
hence the need for this emergency Order to Show Cause.
10. That the Notice to Cure alleges that the Plaintiff sublet the Subject Premises, and
store,"
that the Plaintiff was vaguely operating as a "convenience without setting forth any more
detail regarding same.
1 l. That Said Notice to Cure appears to be self-serving and without merit, wherein
the Plaintiff has already cured same, or is in the process of curing same, and/or there never was a
violation of the Lease in the first place.
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12. Defendant alleges that Plaintiff is using the Subject Premises as a "convenience
store,"
without alleging what the Plaintiff sells, and without providing any detail for this
"B."
allegation, see Exhibit
13. That Defendant further alleged that Plaintiff sublet the Subject Premises, see
"B," "C,"
Exhibit together with Exhibit which is a letter allegedly sent by the Defendant.
14. Plaintiff did not and has not violated the Lease.
15. Plaintiff retained your affiant, who sent a letter to Defendant, seeking proof of a
"D."
breach of lease, see Exhibit
16. Defendant's attorneys did not respond to said letter.
17. Furthermore, the Defendant had actual knowledge of the use of the Subject
Premises, which is open and obvious.
18. The Defendant accepted rental payments, without making any objection as to
what the Subject Premises was used for.
commenced"
19. The Plaintiff has "diligently to cure all alleged defaults.
20. On or about December 28, 2023, the Plaintiff's attorney mailed a letter,
requesting more information about the alleged breach, so that the Plaintiff could seek to cure the
"D."
alleged defaults, see Exhibit
21. The Defendant's attorney did not respond.
22. The Plaintiff has the desire and ability to cure any alleged defaults.
23. The Plaintiff has already begun to cure any default, by seeking to ascertain what
exactly the alleged violations of the Lease were, so that the alleged defaults could be cured, see
"D."
Exhibit
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24. The Plaintiff will cease to engage in actions which are a breach of Lease, should
the Court determine that a breach occurred.
25. The Plaintiff cannot fully cure the alleged violations of the Lease, prior to January
12, 2024, especially wherein the Defendant failed to respond to the Plaintiff's letter, see Exhibit
"D."
26. Plaintiff is seeking for the Defendant to discontinue its harassment of the Plaintiff
and to discontinue its attempt to evict the Plaintiff, with the Notice to Cure stating that the Lease
"B."
will expire on January 12, 2024, see Exhibit
27. The Defendant should be immediately temporarily enjoined from unlawfully and
inexcusably interfering with the Plaintiff's use and occupancy of the Subject Premises, until this
Action is heard and fmally determined, with any cure period tolled and extended.
28. The Lease sets forth that the Plaintiff must only diligently attempt to cure within
the fifteen (15) day period, and is not required to completely remedy any default within the 15
"A."
day period, see Paragraph 17 of Exhibit
The Yellowstone Injunction Must be Granted
29. That "It is well settled that in order to obtain a Yellowstone injunction, the
moving party must demonstrate that: (1) it holds a commercial lease; (2) it received from the
landlord either a notice of default, a notice to cure, or a threat of termination of the lease; (3) it
requested injunctive relief prior to the termination of the lease; and (4) it is prepared and
premises."
maintains the ability to cure the alleged default by any means short of vacating the
225 East 36th St. Garage Corp. v. 221 East 36th Owners Corp., 211 A.D.2d 420, 421, 621
N.Y.S.2d 302 (1st Dept. 1995).
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30. That a "Tenant has thus established that it has both the desire and ability to cure
defaults"
the alleged when "it has attempted and continues to attempt to resolve the issues raised
in landlords notices to cure, and that they have resolved some issues, but need further
fully."
discussions with and cooperation by landlord to address all of the issues 45th St. BLT
Rest. LLC v. Waterscape Resort II, LLC, 2014 NY Slip Op 33223 (Sup. Ct. New York County
2014) (internal citations omitted).
31. That a plaintiff is not required to admit responsibility for an alleged default, in
order to establish entitlement to Yellowstone relief, provided that the plaintiff is willing and able
to cure, should a default be found. See Quik Park 808 Garage, LLC v. 808 Colombus
Commercial Owner LLC, 187 A.D.3d 488 (1st Dept. 2020). See also Boi To Go, Inc. v Second
800 No. 2 LLC, 58 A.D.3d 482 (1st Dept. 2009).
32. When a Plaintiff states its willingness to cure a default, should the Court
determine that a default occurred, the Court should issue a Yellowstone injunction. See ERS
Enterprises, Inc. v. Empire Holdings, LLC, 286 A.D.2d 206 (1st Dept. 2001).
repairs,"
33. When a Plaintiff has commenced "certain and is awaiting a Court ruling
about whether the Plaintiff breached its lease, the Court should issue a Yellowstone injunction.
Se_e Zaid Theatre Corp. v. Sona Realty Co., 18 A.D.3d 352 (1st Dept. 2005).
34. That a Yellowstone injunction is warranted "to preserve the commercial tenant's
merits"
ability to cure a default after a determination of the IJ. at 355.
35. Thus, the Plaintiff herein has shown that "(1) it holds a commercial lease; (2) it
received from the landlord either a notice of default, a notice to cure, or a threat of termination of
the lease; (3) it requested injunctive relief prior to the termination of the lease; and (4) it is
prepared and maintains the ability to cure the alleged default by any means short of vacating the
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premises."
225 East 36th St. Garage Corp. v. 221 East 36th Owners Corp., 211 A.D.2d 420, 421,
621 N.Y.S.2d 302 (1st Dept. 1995).
36. Consequently, this Court should issue a Yellowstone injunction.
Likelihood of Success on the Merits
37. That under the traditional test for a preliminary injunction, the motion herein
should be granted. There is a Lease between the Plaintiff and the Defendant, with the Lease fully
setting forth the obligations of the parties.
38. That the Plaintiff has expended substantial sums of money in building its
business.
39. That the Plaintiff has not breached the Lease, has begun to cure any default, and
has further expressed its willingness to cure any default, should the Court determine that there is
a default.
40. That the Plaintiff has attempted to Cure any alleged defaults, and has the desire
and the ability to cure any alleged violations.
41. Thus, the Plaintiff has a strong likelihood of success on the merits.
Irreparable harm is inherent in the Defendant's attempt to evict the Plaintiff
42. That irreparable harm that will befall the Plaintiff in the event that the Plaintiff is
evicted from the Subject Premises, with the Plaintiff losing a substantial investment, and losing
its valuable leasehold.
quo"
43. That maintaining the "status benefits both parties, as the Defendant will
continue to be paid rent while the dispute is litigated. The irreparable harm that will befall the
Plaintiff should it be evicted outweighs any considerations that the Defendant may have in this
dispute.
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Balancing the Equities
quo"
44. The Defendant will not be harmed or prejudiced if the "status is maintained
while the Plaintiff is permitted to remain at the Subject Premises while the dispute is litigated.
45. The Defendant's attempt to summarily evict the Plaintiff violates the Lease, and
should not be countenanced under the law. The irreparable harm that will flow from such breach
is self-evident.
46. That it is apparent that the movant has established the criterion for injunctive
relief, to wit: (1) the likelihood of ultimate success; (2) if immediate irreparable injury would
result in the denial of the relief; and (3) a balance of the equities to effect substantial justice and
to preserve the status quo. W.T. Grant v. Scrogi, 52 N.Y.2d 496 (1981).
47. That under these circumstances, the equities lie in maintaining the status quo, .see
Hicksville Properties, LLC v. Wollenhaupt, 268 A.D.2d 407 (2d Dept. 2000).
48. That in Becker Parkin Dental Supply Co. v. 450 Westside Partners, 284 A.D.2d
112, 725 N.Y.S.2d 547 (1st Dept. 2001), the Court wrote,
The defaults described in the landlord's notice to cure are such as not
to be capable of complete cure within the time provided in the notice,
parties'
even as extended by the subsequent agreements. Under these
circumstances, all that the lease terms require from the tenant is
commencement of diligent efforts to cure the defaults within the
allotted time (see, Long Is. Gynecological Servs. v 1103 Stewart Ave.
Assocs. Ltd. Partnership, 224 AD2d 591; VB Mgt. v AD 1619 Co.,
256 AD2d 84, ly denied 93 NY2d 810). The record shows that plaintiff
complied with this obligation by, among other things, retaining
architects, engineers and contractors and submitting plans to the
landlord for approval. (emphasis added).
49. That, as stated in Village Ctr. v. Sligo Realty, 95 A.D.3d 219, 221-222, 943
N.Y.S.2d 11 (1st Dept. 2012), the Court in Becker Parkin "held that Yellowstone relief is
appropriate even where defaults in a notice to cure are not capable of being cured within the time
7
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provided in the notice as long as all the lease requires is that the tenant commence diligent
time,"
efforts to cure the defaults within the allotted with the Court in Village Ctr. stating that
Department."
"Becker Parkin is still good law in this
50. That "a default provision in a lease may provide, in addition to the specific
period,"
number of days constituting a "cure for an unspecified longer period to cure. In such
instances, we have held that where a tenant with good faith and diligence commences curing
within the specified period of time, but cannot complete the cure within that period, the
period.'"
unspecified longer period provided for in the lease governs the applicable 'cure Village
CtL, 95 A.D.3d at 222, citing to VB Mgt. v AD 1619 Co., 256 A.D.2d 84 (1998), ly denied 93
N.Y.2d 810 (1999).
51. That, in Village Ctr., the Court noted that "It cannot be reasonably argued that
days,"
tenant could have cured all the alleged defaults within 10 and that "Tenant commenced
curing the violation within the 10 days by providing landlord with the documentation tenant
default."
believed would remedy its
52. Hence, in Village Court, the First Department held that "it was error for Supreme
Court to deny Yellowstone relief since 'all that the lease terms require from the tenant is
time.'"
commencement of diligent efforts to cure the defaults within the allotted I_d. at 223, citing
to Becker Parkin.
53. Clearly, the Plaintiff commenced diligent efforts to cure any alleged defaults, as
required by paragraph 17 of the Lease.
54. Accordingly, a preliminary injunction should be granted.
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The Defendant Had Actual Knowledge of What the Plaintiff was Selling, and Waived Any
Objection Thereto
55. That, as well, Plaintiff has a valid claim of waiver, with respect to the predicate
notices, assuming, arguendo, that the Plaintiff breached the Lease.
56. That the waiver claim is based on the fact that the Defendant had actual
knowledge about what the Plaintiff was selling, and did not object.
57. That the First Department held, in Madison Ave. v. Madison Assoc., 30 A.D.3d 1,
811 N.Y.S.2d 47 (1st Dept. 2006), that:
It is well established that "[w]hen rent is accepted with knowledge of particular
conduct which is claimed to be a default, the acceptance of such rent constitutes a
default"
waiver by landlord of the (Atkin's Waste Materials v May, 34 NY2d 422,
427 [1974], citing Woollard
Preview
FILED: BRONX COUNTY CLERK 01/11/2024 03:57 PM INDEX NO. 800602/2024E NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 01/11/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX _______....-----______----------____-_________________-----..____Ç MARYA ABDUL SALAM AL HAJJADI, : INDEX NO.: 800602 /24 DBA 3029 CANDY AND ELECTRONICS CORP. : : AFFIRMATION IN Plaintiff, : SUPPORT OF : ORDER TO SHOW CAUSE -against- : TOMBA REALTY LLC, Defendant. ..._____.....____-.._______-....--.......________..____....____...._____..-x The Undersigned Attorney and Counselor-at-Law, duly admitted to practice Law in the Courts of the State of New York, affirms the following, subject to the penalties of perjury: 1. That your affiant is the Attorney for the Plaintiff, MARYA ABDUL SALAM AL HAJJADI DBA 3029 CANDY AND ELECTRONICS CORP. ("Plaintiff"), and as such is fully familiar with all of the facts and circumstances had herein. 2. That this Affirmation is submitted in support of the Plaintiff's motion for a temporary restraining order and preliminary injunction, to maintain the status quo while this matter is litigated between the parties. 3. That "The Court of Appeals has acknowledged that courts routinely grant Yellowstone relief to reflect this State's policy against forfeiture, and courts have done so by relief.'" accepting 'far less than the normal showing required for preliminary injunctive Village Ctr. v. Sligo Realty, 95 A.D.3d 219, 222, 943 N.Y.S.2d 11 (1st Dept. 2012), citing to Post v. 120 E. End Ave. Corp., 62 N.Y.2d 19, 25 (1984). quo' 4. That "The purpose of a Yellowstone injunction is to maintain the 'status so that the tenant served with a notice to cure an alleged lease violation may challenge the propriety interest." o the landlor s notice while protecting a valuable leasehold 1633 Broadway Mars 1 of 10 FILED: BRONX COUNTY CLERK 01/11/2024 03:57 PM INDEX NO. 800602/2024E NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 01/11/2024 Restaurant Corp. v. Paramount Group, Inc., 2007 N.Y. Slip Op 32193 (Sup. Ct. New York County 2007) (internal citations omitted). 5. In P_ost, the Court of Appeals further noted that "An applicant rarely has been required to demonstrate a likelihood of success, irreparable injury, and that the equities favored preliminary relief as those terms are traditionally understood. Indeed, the courts have not professed to require such evidence. The threat of termination of the lease and forfeiture, standing injunction." alone, has been sufficient to permit maintenance of the status quo by Post, 62 N.Y.2d at 25-26 (internal citations omitted). 6. That "it is a well-settled equitable principle that the courts do not look favorably leases." upon the forfeiture of Sharp v. Norwood, 223 A.D.2d 6 (1st Dept. 1996). 7. That the Plaintiff entered into a written lease ("Lease") with the Defendant, for the property located at 2039 Middletown Road, Bronx, New York 10461, aka 1603 Hobart "A." Avenue, Bronx, New York 10461 ("Subject Premises"), see Exhibit 8. That the Defendant seeks to evict the Plaintiff, via a Notice to Cure, see Exhibit "B." 9. That the Notice to Cure sets forth that the Lease will expire on January 12, 2024, hence the need for this emergency Order to Show Cause. 10. That the Notice to Cure alleges that the Plaintiff sublet the Subject Premises, and store," that the Plaintiff was vaguely operating as a "convenience without setting forth any more detail regarding same. 1 l. That Said Notice to Cure appears to be self-serving and without merit, wherein the Plaintiff has already cured same, or is in the process of curing same, and/or there never was a violation of the Lease in the first place. 2 2 of 10 FILED: BRONX COUNTY CLERK 01/11/2024 03:57 PM INDEX NO. 800602/2024E NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 01/11/2024 12. Defendant alleges that Plaintiff is using the Subject Premises as a "convenience store," without alleging what the Plaintiff sells, and without providing any detail for this "B." allegation, see Exhibit 13. That Defendant further alleged that Plaintiff sublet the Subject Premises, see "B," "C," Exhibit together with Exhibit which is a letter allegedly sent by the Defendant. 14. Plaintiff did not and has not violated the Lease. 15. Plaintiff retained your affiant, who sent a letter to Defendant, seeking proof of a "D." breach of lease, see Exhibit 16. Defendant's attorneys did not respond to said letter. 17. Furthermore, the Defendant had actual knowledge of the use of the Subject Premises, which is open and obvious. 18. The Defendant accepted rental payments, without making any objection as to what the Subject Premises was used for. commenced" 19. The Plaintiff has "diligently to cure all alleged defaults. 20. On or about December 28, 2023, the Plaintiff's attorney mailed a letter, requesting more information about the alleged breach, so that the Plaintiff could seek to cure the "D." alleged defaults, see Exhibit 21. The Defendant's attorney did not respond. 22. The Plaintiff has the desire and ability to cure any alleged defaults. 23. The Plaintiff has already begun to cure any default, by seeking to ascertain what exactly the alleged violations of the Lease were, so that the alleged defaults could be cured, see "D." Exhibit 3 3 of 10 FILED: BRONX COUNTY CLERK 01/11/2024 03:57 PM INDEX NO. 800602/2024E NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 01/11/2024 24. The Plaintiff will cease to engage in actions which are a breach of Lease, should the Court determine that a breach occurred. 25. The Plaintiff cannot fully cure the alleged violations of the Lease, prior to January 12, 2024, especially wherein the Defendant failed to respond to the Plaintiff's letter, see Exhibit "D." 26. Plaintiff is seeking for the Defendant to discontinue its harassment of the Plaintiff and to discontinue its attempt to evict the Plaintiff, with the Notice to Cure stating that the Lease "B." will expire on January 12, 2024, see Exhibit 27. The Defendant should be immediately temporarily enjoined from unlawfully and inexcusably interfering with the Plaintiff's use and occupancy of the Subject Premises, until this Action is heard and fmally determined, with any cure period tolled and extended. 28. The Lease sets forth that the Plaintiff must only diligently attempt to cure within the fifteen (15) day period, and is not required to completely remedy any default within the 15 "A." day period, see Paragraph 17 of Exhibit The Yellowstone Injunction Must be Granted 29. That "It is well settled that in order to obtain a Yellowstone injunction, the moving party must demonstrate that: (1) it holds a commercial lease; (2) it received from the landlord either a notice of default, a notice to cure, or a threat of termination of the lease; (3) it requested injunctive relief prior to the termination of the lease; and (4) it is prepared and premises." maintains the ability to cure the alleged default by any means short of vacating the 225 East 36th St. Garage Corp. v. 221 East 36th Owners Corp., 211 A.D.2d 420, 421, 621 N.Y.S.2d 302 (1st Dept. 1995). 4 4 of 10 FILED: BRONX COUNTY CLERK 01/11/2024 03:57 PM INDEX NO. 800602/2024E NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 01/11/2024 30. That a "Tenant has thus established that it has both the desire and ability to cure defaults" the alleged when "it has attempted and continues to attempt to resolve the issues raised in landlords notices to cure, and that they have resolved some issues, but need further fully." discussions with and cooperation by landlord to address all of the issues 45th St. BLT Rest. LLC v. Waterscape Resort II, LLC, 2014 NY Slip Op 33223 (Sup. Ct. New York County 2014) (internal citations omitted). 31. That a plaintiff is not required to admit responsibility for an alleged default, in order to establish entitlement to Yellowstone relief, provided that the plaintiff is willing and able to cure, should a default be found. See Quik Park 808 Garage, LLC v. 808 Colombus Commercial Owner LLC, 187 A.D.3d 488 (1st Dept. 2020). See also Boi To Go, Inc. v Second 800 No. 2 LLC, 58 A.D.3d 482 (1st Dept. 2009). 32. When a Plaintiff states its willingness to cure a default, should the Court determine that a default occurred, the Court should issue a Yellowstone injunction. See ERS Enterprises, Inc. v. Empire Holdings, LLC, 286 A.D.2d 206 (1st Dept. 2001). repairs," 33. When a Plaintiff has commenced "certain and is awaiting a Court ruling about whether the Plaintiff breached its lease, the Court should issue a Yellowstone injunction. Se_e Zaid Theatre Corp. v. Sona Realty Co., 18 A.D.3d 352 (1st Dept. 2005). 34. That a Yellowstone injunction is warranted "to preserve the commercial tenant's merits" ability to cure a default after a determination of the IJ. at 355. 35. Thus, the Plaintiff herein has shown that "(1) it holds a commercial lease; (2) it received from the landlord either a notice of default, a notice to cure, or a threat of termination of the lease; (3) it requested injunctive relief prior to the termination of the lease; and (4) it is prepared and maintains the ability to cure the alleged default by any means short of vacating the 5 5 of 10 FILED: BRONX COUNTY CLERK 01/11/2024 03:57 PM INDEX NO. 800602/2024E NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 01/11/2024 premises." 225 East 36th St. Garage Corp. v. 221 East 36th Owners Corp., 211 A.D.2d 420, 421, 621 N.Y.S.2d 302 (1st Dept. 1995). 36. Consequently, this Court should issue a Yellowstone injunction. Likelihood of Success on the Merits 37. That under the traditional test for a preliminary injunction, the motion herein should be granted. There is a Lease between the Plaintiff and the Defendant, with the Lease fully setting forth the obligations of the parties. 38. That the Plaintiff has expended substantial sums of money in building its business. 39. That the Plaintiff has not breached the Lease, has begun to cure any default, and has further expressed its willingness to cure any default, should the Court determine that there is a default. 40. That the Plaintiff has attempted to Cure any alleged defaults, and has the desire and the ability to cure any alleged violations. 41. Thus, the Plaintiff has a strong likelihood of success on the merits. Irreparable harm is inherent in the Defendant's attempt to evict the Plaintiff 42. That irreparable harm that will befall the Plaintiff in the event that the Plaintiff is evicted from the Subject Premises, with the Plaintiff losing a substantial investment, and losing its valuable leasehold. quo" 43. That maintaining the "status benefits both parties, as the Defendant will continue to be paid rent while the dispute is litigated. The irreparable harm that will befall the Plaintiff should it be evicted outweighs any considerations that the Defendant may have in this dispute. 6 6 of 10 FILED: BRONX COUNTY CLERK 01/11/2024 03:57 PM INDEX NO. 800602/2024E NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 01/11/2024 Balancing the Equities quo" 44. The Defendant will not be harmed or prejudiced if the "status is maintained while the Plaintiff is permitted to remain at the Subject Premises while the dispute is litigated. 45. The Defendant's attempt to summarily evict the Plaintiff violates the Lease, and should not be countenanced under the law. The irreparable harm that will flow from such breach is self-evident. 46. That it is apparent that the movant has established the criterion for injunctive relief, to wit: (1) the likelihood of ultimate success; (2) if immediate irreparable injury would result in the denial of the relief; and (3) a balance of the equities to effect substantial justice and to preserve the status quo. W.T. Grant v. Scrogi, 52 N.Y.2d 496 (1981). 47. That under these circumstances, the equities lie in maintaining the status quo, .see Hicksville Properties, LLC v. Wollenhaupt, 268 A.D.2d 407 (2d Dept. 2000). 48. That in Becker Parkin Dental Supply Co. v. 450 Westside Partners, 284 A.D.2d 112, 725 N.Y.S.2d 547 (1st Dept. 2001), the Court wrote, The defaults described in the landlord's notice to cure are such as not to be capable of complete cure within the time provided in the notice, parties' even as extended by the subsequent agreements. Under these circumstances, all that the lease terms require from the tenant is commencement of diligent efforts to cure the defaults within the allotted time (see, Long Is. Gynecological Servs. v 1103 Stewart Ave. Assocs. Ltd. Partnership, 224 AD2d 591; VB Mgt. v AD 1619 Co., 256 AD2d 84, ly denied 93 NY2d 810). The record shows that plaintiff complied with this obligation by, among other things, retaining architects, engineers and contractors and submitting plans to the landlord for approval. (emphasis added). 49. That, as stated in Village Ctr. v. Sligo Realty, 95 A.D.3d 219, 221-222, 943 N.Y.S.2d 11 (1st Dept. 2012), the Court in Becker Parkin "held that Yellowstone relief is appropriate even where defaults in a notice to cure are not capable of being cured within the time 7 7 of 10 FILED: BRONX COUNTY CLERK 01/11/2024 03:57 PM INDEX NO. 800602/2024E NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 01/11/2024 provided in the notice as long as all the lease requires is that the tenant commence diligent time," efforts to cure the defaults within the allotted with the Court in Village Ctr. stating that Department." "Becker Parkin is still good law in this 50. That "a default provision in a lease may provide, in addition to the specific period," number of days constituting a "cure for an unspecified longer period to cure. In such instances, we have held that where a tenant with good faith and diligence commences curing within the specified period of time, but cannot complete the cure within that period, the period.'" unspecified longer period provided for in the lease governs the applicable 'cure Village CtL, 95 A.D.3d at 222, citing to VB Mgt. v AD 1619 Co., 256 A.D.2d 84 (1998), ly denied 93 N.Y.2d 810 (1999). 51. That, in Village Ctr., the Court noted that "It cannot be reasonably argued that days," tenant could have cured all the alleged defaults within 10 and that "Tenant commenced curing the violation within the 10 days by providing landlord with the documentation tenant default." believed would remedy its 52. Hence, in Village Court, the First Department held that "it was error for Supreme Court to deny Yellowstone relief since 'all that the lease terms require from the tenant is time.'" commencement of diligent efforts to cure the defaults within the allotted I_d. at 223, citing to Becker Parkin. 53. Clearly, the Plaintiff commenced diligent efforts to cure any alleged defaults, as required by paragraph 17 of the Lease. 54. Accordingly, a preliminary injunction should be granted. 8 8 of 10 FILED: BRONX COUNTY CLERK 01/11/2024 03:57 PM INDEX NO. 800602/2024E NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 01/11/2024 The Defendant Had Actual Knowledge of What the Plaintiff was Selling, and Waived Any Objection Thereto 55. That, as well, Plaintiff has a valid claim of waiver, with respect to the predicate notices, assuming, arguendo, that the Plaintiff breached the Lease. 56. That the waiver claim is based on the fact that the Defendant had actual knowledge about what the Plaintiff was selling, and did not object. 57. That the First Department held, in Madison Ave. v. Madison Assoc., 30 A.D.3d 1, 811 N.Y.S.2d 47 (1st Dept. 2006), that: It is well established that "[w]hen rent is accepted with knowledge of particular conduct which is claimed to be a default, the acceptance of such rent constitutes a default" waiver by landlord of the (Atkin's Waste Materials v May, 34 NY2d 422, 427 [1974], citing Woollard