In the late 1990’s, David’s client, a religious organization, rented space in the basement of a building in Queens for prayer meetings and educational forums for neighborhood residents. Then, over ten years later, a new landlord took title and claimed that the tenant’s use of the basement was illegal. The new landlord served a notice to cure claiming a lease violation as a predicate to evicting the tenant.
In such circumstances, the standard procedure is for the tenant to obtain a “Yellowstone injunction” tolling the running of the notice to cure. The courts routinely grant such injunctions. Unfortunately, this tenant waited until after the expiration of the “cure period” and, as such, was not entitled to a Yellowstone injunction. Despite this, the tenant’s attorney was able to stop the eviction on the alternative theory of a preliminary injunction – something courts had almost uniformly held was not available to commercial tenants once the notice to cure had expired.
When the landlord appealed, the tenant turned to David to defend the preliminary injunction on appeal and he came through. Adopting the arguments made in David’s brief, the Appellate Division, Second Department, affirmed the preliminary injunction. Masjid Usman, Inc. v. Beech 140, LLC, — ad3d –, — NYS2d — (2d Dep’t 2009).
This case represents an important expansion of commercial tenants’ rights, as it is the first appellate level decision that sanctions the issuance of a preliminary injunction even when the tenant has no right to a Yellowstone injunction. Although commercial tenants in receipt of a notice to cure should always act quickly and obtain a Yellowstone injunction if they can, if they fail to do so, there is now a fall back option that could prevent eviction and forfeiture of the tenancy.
