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ATTORNEY HAD APPARENT AUTHORITY TO SIGN STIPULATION OF SETTLEMENT (SECOND DEPT).

The Second Department determined that a stipulation of settlement was properly enforced because the attorney had the apparent authority to sign the stipulation on the client’s behalf:

“An agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him [or her] or his [or her] attorney or reduced to the form of an order and entered” (CPLR 2104). A stipulation of settlement signed by an attorney may bind his or her client even if it exceeds the attorney’s actual authority if the attorney had apparent authority to act on his or her client’s behalf … . Here, the plaintiff is bound by the stipulation of settlement signed by her former attorney, as the record supports the finding that even if the attorney lacked actual authority to enter into the stipulation of settlement on the plaintiff’s behalf, he had apparent authority to do so (see CPLR 2104 …). Anghel v Utica Mut. Ins. Co., 2018 NY Slip Op 06073, Second Dept 9-19-18

CIVIL PROCEDURE (STIPULATION, ATTORNEY HAD APPARENT AUTHORITY TO SIGN STIPULATION OF SETTLEMENT (SECOND DEPT))/CONTRACT LAW (STIPULATION, ATTORNEY HAD APPARENT AUTHORITY TO SIGN STIPULATION OF SETTLEMENT (SECOND DEPT))/ATTORNEYS (STIPULATION, ATTORNEY HAD APPARENT AUTHORITY TO SIGN STIPULATION OF SETTLEMENT (SECOND DEPT))/AGENCY (ATTORNEYS, STIPULATION, ATTORNEY HAD APPARENT AUTHORITY TO SIGN STIPULATION OF SETTLEMENT (SECOND DEPT)/STIPULATION (ATTORNEYS, AGENCY, ATTORNEY HAD APPARENT AUTHORITY TO SIGN STIPULATION OF SETTLEMENT (SECOND DEPT))/APPARENT AUTHORITY (AGENCY, ATTORNEYS, STIPULATION, ATTORNEY HAD APPARENT AUTHORITY TO SIGN STIPULATION OF SETTLEMENT (SECOND DEPT))/CPLR 2104 (STIPULATION, ATTORNEY HAD APPARENT AUTHORITY TO SIGN STIPULATION OF SETTLEMENT (SECOND DEPT))

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STATUTE OF LIMITATIONS DEFENSE WAS WAIVED BECAUSE IT WAS NOT RAISED IN AN ANSWER OR A PRE-ANSWER MOTION TO DISMISS IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, in this foreclosure action, noted that the statute limitations defense is waived if not raised in an answer or a pre-answer motion to dismiss:

In July 2014, the plaintiff commenced this mortgage foreclosure action against, among others, the defendant Anthony Palazzotto. Palazzotto defaulted in answering or appearing, and the plaintiff moved for leave to enter a default judgment and for an order of reference. Palazzotto opposed the motion, and cross-moved to dismiss the complaint insofar as asserted against him as time-barred … . He argued that the debt was accelerated in 2008, when a prior action was commenced to foreclose the same mortgage. The Supreme Court denied the plaintiff's motion, and granted Palazzotto's cross motion. …

The plaintiff demonstrated its entitlement to a default judgment and an order of reference by submitting proof of service of a copy of the summons and complaint, proof of the facts constituting the causes of action, including that the defendant defaulted on his payment obligations, and proof that neither he nor any of the other defendants had otherwise appeared or answered the complaint within the time allowed (see RPAPL 1321[1]; CPLR 3215[f]…).

Palazzotto waived a statute of limitations defense by failing to raise it in an answer or in a timely pre-answer motion to dismiss (see CPLR 3211[a][5]…). 21st Mtge. Corp. v Palazzotto, 2018 NY Slip Op 06072, Second Dept 9-19-18

CIVIL PROCEDURE (STATUTE OF LIMITATIONS DEFENSE WAS WAIVED BECAUSE IT WAS NOT RAISED IN AN ANSWER OR A PRE-ANSWER MOTION TO DISMISS IN THIS FORECLOSURE ACTION (SECOND DEPT))/FORECLOSURE (STATUTE OF LIMITATIONS DEFENSE WAS WAIVED BECAUSE IT WAS NOT RAISED IN AN ANSWER OR A PRE-ANSWER MOTION TO DISMISS IN THIS FORECLOSURE ACTION (SECOND DEPT))

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SUPREME COURT SHOULD NOT HAVE REFUSED TO VACATE A DISMISSAL AND ALLOW AMENDMENT PLAINTIFF’S BILL OF PARTICULARS, PLAINTIFF’S DELAY IN COMPLYING WITH A CONDITIONAL PRECLUSION ORDER WAS SHORT AND WAS ADEQUATELY EXCUSED BY LAW OFFICER FAILURE (SECOND DEPT

The Second Department, reversing Supreme Court, determined the delay in complying with a conditional discovery order did not justify Supreme Court's refusing to vacate the dismissal and allow the amendment of plaintiff's bill of particulars. The delay was short and the law office failure excuse was adequate:

“To obtain relief from a conditional order of preclusion, the defaulting party must demonstrate a reasonable excuse for the failure to produce the requested items and the existence of a potentially meritorious claim or defense” … . Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in concluding that the law office failure of the plaintiff's former counsel was not a reasonable excuse for the plaintiff's short delay in complying with the directives of the conditional order … . Moreover, the plaintiff demonstrated the existence of a potentially meritorious cause of action to recover lost wages … .

Further, the Supreme Court improvidently exercised its discretion in denying that branch of the plaintiff's motion which was for leave to amend her bill of particulars to allege that she had sustained property damage as a result of her alleged exposure to toxic mold and fungi at the defendants' premises. “Generally, in the absence of prejudice or surprise to the opposing party, leave to amend a bill of particulars should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit'” … . “Where this standard is met, [t]he sufficiency or underlying merit of the proposed amendment is to be examined no further'” … . Here, the proposed amendment is not palpably insufficient or patently devoid of merit, and there is no evidence that it would prejudice or surprise the defendants, since the proposed amendment arose out of the same facts as those set forth in the complaint … . Liese v Hennessey, 2018 NY Slip Op 06087, Second Dept 9-19-18

CIVIL PROCEDURE (SUPREME COURT SHOULD NOT HAVE REFUSED TO VACATE A DISMISSAL AND ALLOW AMENDMENT PLAINTIFF'S BILL OF PARTICULARS, PLAINTIFF'S DELAY IN COMPLYING WITH A CONDITIONAL PRECLUSION ORDER WAS SHORT AND WAS ADEQUATELY EXCUSED BY LAW OFFICER FAILURE (SECOND DEPT))/ATTORNEYS  (SUPREME COURT SHOULD NOT HAVE REFUSED TO VACATE A DISMISSAL AND ALLOW AMENDMENT PLAINTIFF'S BILL OF PARTICULARS, PLAINTIFF'S DELAY IN COMPLYING WITH A CONDITIONAL PRECLUSION ORDER WAS SHORT AND WAS ADEQUATELY EXCUSED BY LAW OFFICER FAILURE (SECOND DEPT))/LAW OFFICE FAILURE  (SUPREME COURT SHOULD NOT HAVE REFUSED TO VACATE A DISMISSAL AND ALLOW AMENDMENT PLAINTIFF'S BILL OF PARTICULARS, PLAINTIFF'S DELAY IN COMPLYING WITH A CONDITIONAL PRECLUSION ORDER WAS SHORT AND WAS ADEQUATELY EXCUSED BY LAW OFFICER FAILURE (SECOND DEPT))/BILL OF PARTICULARS (SUPREME COURT SHOULD NOT HAVE REFUSED TO VACATE A DISMISSAL AND ALLOW AMENDMENT PLAINTIFF'S BILL OF PARTICULARS, PLAINTIFF'S DELAY IN COMPLYING WITH A CONDITIONAL PRECLUSION ORDER WAS SHORT AND WAS ADEQUATELY EXCUSED BY LAW OFFICER FAILURE (SECOND DEPT))

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CONCLUSORY AND UNSUBSTANTIATED ALLEGATION OF LAW OFFICE FAILURE DID NOT JUSTIFY VACATING THE DISMISSAL OF THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the law-office-failure offered as an excuse for failure to comply with a conditional order in this foreclosure action was not sufficient to justify vacating the dismissal of the action:

To vacate the dismissal, HSBC was required to demonstrate a justifiable excuse for the noncompliance with the conditional order of dismissal and the existence of a potentially meritorious cause of action (see CPLR 3216… ). Here, the proffered excuse of law office failure by prior counsel in failing to timely file a note of issue or move for entry of judgment was conclusory and wholly unsubstantiated (see CPLR 2005…). HSBC did not proffer an affidavit from anyone with personal knowledge of the purported law office failure and failed to provide any details regarding such failure. Therefore, the allegation of law office failure did not rise to the level of a reasonable excuse … . Fremont Inv. & Loan v Fausta, 2018 NY Slip Op 06084, Second Dept 9-19-18

CIVIL PROCEDURE (CONCLUSORY AND UNSUBSTANTIATED ALLEGATION OF LAW OFFICE FAILURE DID NOT JUSTIFY VACATING THE DISMISSAL OF THE FORECLOSURE ACTION (SECOND DEPT))/CPLR 3216 (CONCLUSORY AND UNSUBSTANTIATED ALLEGATION OF LAW OFFICE FAILURE DID NOT JUSTIFY VACATING THE DISMISSAL OF THE FORECLOSURE ACTION (SECOND DEPT))/CPLR 2005 (CONCLUSORY AND UNSUBSTANTIATED ALLEGATION OF LAW OFFICE FAILURE DID NOT JUSTIFY VACATING THE DISMISSAL OF THE FORECLOSURE ACTION (SECOND DEPT))/FORECLOSURE (CONCLUSORY AND UNSUBSTANTIATED ALLEGATION OF LAW OFFICE FAILURE DID NOT JUSTIFY VACATING THE DISMISSAL OF THE FORECLOSURE ACTION (SECOND DEPT))/ATTORNEYS CONCLUSORY AND UNSUBSTANTIATED ALLEGATION OF LAW OFFICE FAILURE DID NOT JUSTIFY VACATING THE DISMISSAL OF THE FORECLOSURE ACTION (SECOND DEPT))/LAW OFFICE FAILURE  (CONCLUSORY AND UNSUBSTANTIATED ALLEGATION OF LAW OFFICE FAILURE DID NOT JUSTIFY VACATING THE DISMISSAL OF THE FORECLOSURE ACTION (SECOND DEPT))

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SUPREME COURT LACKED TO POWER TO SUPPRESS DEFENDANT’S PRESENTENCE REPORT IN IMMIGRATION PROCEEDINGS (SECOND DEPT).

The Second Department determined defendant juvenile offender could not move to suppress his presentence report in subsequent Department of Homeland Security proceedings:

The defendant, an immigrant from Bangladesh, was adjudicated a youthful offender. After completing his sentence, the defendant was detained by the United States Department of Homeland Security (hereinafter the DHS), which, in reliance on the defendant's presentence report, argued that the defendant should be denied a bond due to his youthful offender adjudication. Thereafter, the defendant moved before the Supreme Court in the subject criminal proceeding pursuant to CPLR 3103 for a protective order “enjoining the [DHS's] use” of his presentence report, arguing that it is a confidential record under CPL 720.35(2), which the DHS had improperly obtained. In an order dated June 6, 2017, the Supreme Court denied the defendant's motion. The defendant appeals.

CPLR 3103 ” confers broad discretion upon a court to fashion appropriate remedies' to prevent the abuse of disclosure devices” … . Pursuant to CPLR 3103(c), “[i]f any disclosure under this article has been improperly or irregularly obtained so that a substantial right of a party is prejudiced, the court, on motion, may make an appropriate order, including an order that the information be suppressed” … . Here, since the DHS did not obtain the presentence report in the course of any disclosure process under CPLR Article 31, there is no basis for the issuance of a protective order pursuant to CPLR 3103(c). Moreover, since “[c]ontrol over immigration and naturalization is entrusted exclusively to the Federal Government, and a State has no power to interfere” … , the Supreme Court lacked the power to suppress the presentence report in immigration proceedings. People v Saqline K., 2018 NY Slip Op 06115, Second Dept 9-19-18

CRIMINAL LAW (SUPREME COURT LACKED TO POWER TO SUPPRESS DEFENDANT'S PRESENTENCE REPORT IN IMMIGRATION PROCEEDINGS (SECOND DEPT))/IMMIGRATION LAW (SUPREME COURT LACKED TO POWER TO SUPPRESS DEFENDANT'S PRESENTENCE REPORT IN IMMIGRATION PROCEEDINGS (SECOND DEPT))/EVIDENCE (IMMIGRATION LAW, SUPREME COURT LACKED TO POWER TO SUPPRESS DEFENDANT'S PRESENTENCE REPORT IN IMMIGRATION PROCEEDINGS (SECOND DEPT))CIVIL PROCEDURE (IMMIGRATION LAW, (SUPREME COURT LACKED TO POWER TO SUPPRESS DEFENDANT'S PRESENTENCE REPORT IN IMMIGRATION PROCEEDINGS (SECOND DEPT))PRESENTENCE REPORT (IMMIGRATION LAW, SUPREME COURT LACKED TO POWER TO SUPPRESS DEFENDANT'S PRESENTENCE REPORT IN IMMIGRATION PROCEEDINGS (SECOND DEPT))

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LAW OFFICE FAILURE WAS AN INADEQUATE EXCUSE FOR PLAINTIFF’S FAILURE TO APPEAR AT A SCHEDULED COURT CONFERENCE IN A FORECLOSURE ACTION (SECOND DEPT).

The Second Department determined plaintiff's motion to vacate the dismissal of a foreclosure action was properly denied. Plaintiff failed to appear at a scheduled court conference and the law-office-failure excuse was deemed inadequate:

In order to vacate a default in appearing at a scheduled court conference, a plaintiff must demonstrate both a reasonable excuse and a potentially meritorious cause of action (see CPLR 5015[a][1]… ). The determination of whether an excuse is reasonable lies within the sound discretion of the Supreme Court … . The court has discretion to accept law office failure as a reasonable excuse (see CPLR 2005) where the claim is supported by a detailed and credible explanation of the default… .

Here, the plaintiff's bare allegation of law office failure was insufficient to demonstrate a reasonable excuse for its default … . Moreover, the plaintiff failed to provide a reasonable excuse for its lengthy delay in moving to vacate the order of dismissal … . Option One Mtge. Corp. v Rose, 2018 NY Slip Op 06023, Second Dept 9-12-18

CIVIL PROCEDURE (LAW OFFICE FAILURE WAS AN INADEQUATE EXCUSE FOR PLAINTIFF'S FAILURE TO APPEAR AT A SCHEDULED COURT CONFERENCE IN A FORECLOSURE ACTION (SECOND DEPT))/LAW OFFICE FAILURE (CIVIL PROCEDURE, LAW OFFICE FAILURE WAS AN INADEQUATE EXCUSE FOR PLAINTIFF'S FAILURE TO APPEAR AT A SCHEDULED COURT CONFERENCE IN A FORECLOSURE ACTION (SECOND DEPT))/ATTORNEYS  (LAW OFFICE FAILURE WAS AN INADEQUATE EXCUSE FOR PLAINTIFF'S FAILURE TO APPEAR AT A SCHEDULED COURT CONFERENCE IN A FORECLOSURE ACTION (SECOND DEPT))/CPLR 5015 (LAW OFFICE FAILURE WAS AN INADEQUATE EXCUSE FOR PLAINTIFF'S FAILURE TO APPEAR AT A SCHEDULED COURT CONFERENCE IN A FORECLOSURE ACTION (SECOND DEPT))/CPLR 2005 (LAW OFFICE FAILURE WAS AN INADEQUATE EXCUSE FOR PLAINTIFF'S FAILURE TO APPEAR AT A SCHEDULED COURT CONFERENCE IN A FORECLOSURE ACTION (SECOND DEPT))

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MOTION TO VACATE A DEFAULT JUDGMENT PURSUANT TO CPLR 317 PROPERLY GRANTED, DEFENDANT DEMONSTRATED IT WAS NOT PERSONALLY SERVED AND THE FAILURE TO PROVIDE THE CORRECT ADDRESS TO THE SECRETARY OF STATE WAS NOT A DELIBERATE ATTEMPT TO EVADE NOTICE (SECOND DEPT)

The Second Department determined that defendant's motion to vacate a default judgment pursuant to CPLR 317 was properly granted:

CPLR 317 provides that a defendant who is not served by personal delivery in an action may vacate its default as long as it demonstrates that it did not personally receive notice of the lawsuit in time to defend against the action and shows that it possesses a potentially meritorious defense … . The determination of a motion pursuant to CPLR 317 is addressed to the sound discretion of the trial court, “the exercise of which will generally not be disturbed if there is support in the record therefor”… .

Contrary to the plaintiff's contention, the Supreme Court did not improvidently exercise its discretion in granting that branch of 510's motion which was pursuant to CPLR 317 to vacate the judgment of foreclosure and sale on the condition that it pay all amounts owed within 30 days of the date of the order. Service of the summons and complaint in the foreclosure action was made upon 510 by delivering the pleadings to the Secretary of State (see Limited Liability Company Law § 303), which did not constitute personal delivery … , and 510's submissions in support of the motion established that it did not receive actual notice of the foreclosure action in time to defend… . Moreover, under the circumstances of this case, 510 succeeded in setting forth a potentially meritorious defense to the foreclosure action. Finally, the evidence does not suggest that 510's failure to update its service address with the Secretary of State while its principal offices were undergoing renovations constituted a deliberate attempt to evade notice; hence, that failure did not preclude the granting of relief to it under CPLR 317 … . Acqua Capital, LLC v 510 W. Boston Post Rd, LLC, 2018 NY Slip Op 05991, Second Dept 9-12-18

CIVIL PROCEDURE (MOTION TO VACATE A DEFAULT JUDGMENT PURSUANT TO CPLR 317 PROPERLY GRANTED, DEFENDANT DEMONSTRATED IT WAS NOT PERSONALLY SERVED AND THE FAILURE TO PROVIDE THE CORRECT ADDRESS TO THE SECRETARY OF STATE WAS NOT A DELIBERATE ATTEMPT TO EVADE NOTICE (SECOND DEPT))/LIMITED LIABILITY COMPANY LAW (CIVIL PROCEDURE, MOTION TO VACATE A DEFAULT JUDGMENT PURSUANT TO CPLR 317 PROPERLY GRANTED, DEFENDANT DEMONSTRATED IT WAS NOT PERSONALLY SERVED AND THE FAILURE TO PROVIDE THE CORRECT ADDRESS TO THE SECRETARY OF STATE WAS NOT A DELIBERATE ATTEMPT TO EVADE NOTICE (SECOND DEPT))/DEFAULT JUDGMENT (MOTION TO VACATE A DEFAULT JUDGMENT PURSUANT TO CPLR 317 PROPERLY GRANTED, DEFENDANT DEMONSTRATED IT WAS NOT PERSONALLY SERVED AND THE FAILURE TO PROVIDE THE CORRECT ADDRESS TO THE SECRETARY OF STATE WAS NOT A DELIBERATE ATTEMPT TO EVADE NOTICE (SECOND DEPT))/CPLR 317 (MOTION TO VACATE A DEFAULT JUDGMENT PURSUANT TO CPLR 317 PROPERLY GRANTED, DEFENDANT DEMONSTRATED IT WAS NOT PERSONALLY SERVED AND THE FAILURE TO PROVIDE THE CORRECT ADDRESS TO THE SECRETARY OF STATE WAS NOT A DELIBERATE ATTEMPT TO EVADE NOTICE (SECOND DEPT))

MOTION TO COMPEL PLAINTIFF TO ACCEPT A LATE ANSWER, IN RESPONSE TO PLAINTIFF’S MOTION FOR A DEFAULT JUDGMENT, PROPERLY GRANTED (SECOND DEPT).

The Second Department determined defendant's cross-motion to compel plaintiff to accept a late answer, in response to plaintiff's motion for a default judgment, was properly granted:

The plaintiff allegedly slipped and fell on snow and ice on an exterior walkway located on property owned and operated by the defendants. She subsequently commenced this action and served the defendants with process via the Secretary of State on October 11, 2016, pursuant to Limited Liability Company Law § 303. On November 25, 2016, the plaintiff moved pursuant to CPLR 3215 for leave to enter a default judgment. On December 22, 2016, 42 days after the defendants' time to answer had expired, the defendants cross-moved pursuant to CPLR 2004 and 3012(d) to compel the plaintiff to accept their late answer. Annexed to the defendants' cross motion was their proposed answer. The Supreme Court denied the plaintiff's motion and granted the defendants' cross motion. The plaintiff appeals.

In light of the lack of prejudice to the plaintiff resulting from the defendants' short delay in answering the complaint, the lack of willfulness on the part of the defendants, the existence of a potentially meritorious defense, and the public policy favoring the resolution of cases on the merits, the Supreme Court providently exercised its discretion in denying the plaintiff's motion pursuant to CPLR 3215 for leave to enter a default judgment against the defendants and in granting the defendants' cross motion to compel the plaintiff to accept their late answer … . Marcelli v Lorraine Arms Apts., LLC, 2018 NY Slip Op 06006, Second Dept 9-12-18

CIVIL PROCEDURE (MOTION TO COMPEL PLAINTIFF TO ACCEPT A LATE ANSWER, IN RESPONSE TO PLAINTIFF'S MOTION FOR A DEFAULT JUDGMENT, PROPERLY GRANTED (SECOND DEPT))/CPLR 3215  (MOTION TO COMPEL PLAINTIFF TO ACCEPT A LATE ANSWER, IN RESPONSE TO PLAINTIFF'S MOTION FOR A DEFAULT JUDGMENT, PROPERLY GRANTED (SECOND DEPT))/CPLR 2004 (MOTION TO COMPEL PLAINTIFF TO ACCEPT A LATE ANSWER, IN RESPONSE TO PLAINTIFF'S MOTION FOR A DEFAULT JUDGMENT, PROPERLY GRANTED (SECOND DEPT))/CPLR 3012(d)  (MOTION TO COMPEL PLAINTIFF TO ACCEPT A LATE ANSWER, IN RESPONSE TO PLAINTIFF'S MOTION FOR A DEFAULT JUDGMENT, PROPERLY GRANTED (SECOND DEPT))

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FAILURE TO SUBMIT AN ORDER FOR SIGNATURE WITHIN 60 DAYS CONSTITUTED ABANDONMENT (SECOND DEPT).

The Second Department determined the failure to submit an order for signature within 60 days constituted abandonment of the action:

The Supreme Court declined to sign the plaintiff's proposed order granting it summary judgment and, in the order appealed from, the court vacated the decision entered September 16, 2009, in effect, granted that branch of the motion … which was pursuant to CPLR 3215 to dismiss the complaint insofar … as abandoned, and, thereupon, directed dismissal of the complaint in its entirety pursuant to CPLR 1003.

“Proposed orders . . . , with proof of service on all parties where the order is directed to be settled or submitted on notice, must be submitted for signature, unless otherwise directed by the court, within 60 days after the signing and filing of the decision directing that the order be settled or submitted” (22 NYCRR 202.48[a]). “Failure to submit the order . . . timely shall be deemed an abandonment of the motion or action, unless for good cause shown” (22 NYCRR 202.48[b]). These provisions are not applicable where the decision does not explicitly direct that the proposed judgment or order be settled or submitted for signature (see Funk v Barry, 89 NY2d 364). However, the direction to “settle order” “ordinarily entails more complicated relief,” and therefore “contemplates notice to the opponent so that both parties may either agree on a draft or prepare counter proposals to be settled before the court” (Funk v Barry, 89 NY2d at 367). Here, the decision entered September 16, 2009, directed the plaintiff to “settle order.” Lasalle Bank N.A. v Benjamin, 2018 NY Slip Op 06005, Second Dept 9-12-18

CIVIL PROCEDURE (FAILURE TO SUBMIT AN ORDER FOR SIGNATURE WITHIN 60 DAYS CONSTITUTED ABANDONMENT (SECOND DEPT))/CPLR 3215 (FAILURE TO SUBMIT AN ORDER FOR SIGNATURE WITHIN 60 DAYS CONSTITUTED ABANDONMENT (SECOND DEPT))/CPLR 1003  (FAILURE TO SUBMIT AN ORDER FOR SIGNATURE WITHIN 60 DAYS CONSTITUTED ABANDONMENT (SECOND DEPT))/FORECLOSURE  (FAILURE TO SUBMIT AN ORDER FOR SIGNATURE WITHIN 60 DAYS CONSTITUTED ABANDONMENT (SECOND DEPT))

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YELLOWSTONE INJUNCTION NOT WARRANTED IN THIS LEASE-TERMINATION CASE, PLAINTIFF NIGHTCLUB DID NOT DEMONSTRATE ITS WILLINGNESS TO CURE AN ALLEGED NOISE-LEVEL VIOLATION OF THE LEASE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined that a Yellowstone injunction should not have issued to plaintiff nightclub. The defendant landlord started proceedings to terminate the lease based upon an alleged violation of the noise-level provision in the lease:

” A Yellowstone injunction maintains the status quo so that a commercial tenant, when confronted by a threat of termination of its lease, may protect its investment in the leasehold by obtaining a stay tolling the cure period so that upon an adverse determination on the merits the tenant may cure the default and avoid a forfeiture' of the lease”… . ” To obtain a Yellowstone injunction, the tenant 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 both the termination of the lease and the expiration of the cure period set forth in the lease and the landlord's notice to cure, and (4) it is prepared and maintains the ability to cure the alleged default by any means short of vacating the premises'” … . A plaintiff demonstrates that it has the desire and ability to cure its alleged default by indicating in its motion papers that it is willing to repair any defective condition found by the court and by providing proof of the substantial effort it has already made in addressing the default listed on the notice to cure … .

In this case, the plaintiff failed to satisfy its burden of adducing evidence that it is willing and able to cure its default. 146 Broadway Assoc., LLC v Bridgeview at Broadway, LLC, 2018 NY Slip Op 05990, Second Dept 9-12-18

LANDLORD-TENANT (YELLOWSTONE INJUNCTION NOT WARRANTED IN THIS LEASE-TERMINATION CASE, PLAINTIFF NIGHTCLUB DID NOT DEMONSTRATE ITS WILLINGNESS TO CURE AN ALLEGED NOISE-LEVEL VIOLATION OF THE LEASE (SECOND DEPT))/YELLOWSTONE INJUNCTION (LANDLORD-TENANT, YELLOWSTONE INJUNCTION NOT WARRANTED IN THIS LEASE-TERMINATION CASE, PLAINTIFF NIGHTCLUB DID NOT DEMONSTRATE ITS WILLINGNESS TO CURE AN ALLEGED NOISE-LEVEL VIOLATION OF THE LEASE (SECOND DEPT))/CIVIL PROCEDURE (LANDLORD-TENANT, YELLOWSTONE INJUNCTION NOT WARRANTED IN THIS LEASE-TERMINATION CASE, PLAINTIFF NIGHTCLUB DID NOT DEMONSTRATE ITS WILLINGNESS TO CURE AN ALLEGED NOISE-LEVEL VIOLATION OF THE LEASE (SECOND DEPT))

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