Definitions Pers. Fitness, Inc. v. 133 E. 58th St. LLC.

• Decision Date: 27 June 2013
• Citation: 2013 N.Y. Slip Op. 04892,967 N.Y.S.2d 647,107 A.D.3d 617
• Parties: DEFINITIONS PERSONAL FITNESS, INC., Plaintiff–Appellant, v. 133 E. 58TH STREET LLC., Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

107 A.D.3d 617

967 N.Y.S.2d 647

2013 N.Y. Slip Op. 04892

DEFINITIONS PERSONAL FITNESS, INC., Plaintiff–Appellant,

v.133 E. 58TH STREET LLC., Defendant–Respondent.

Supreme Court, Appellate Division, First Department, New York.

June 27, 2013.

Robert M. Olshever, P.C., New York (Robert M. Olshever of counsel), for appellant.

Jaffe, Ross & Light, LLP, New York (Bill S. Light of counsel), for respondent.

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered December 19, 2012, which denied plaintiff's motion for a Yellowstone injunction, unanimously affirmed, without costs.

The record demonstrates that plaintiff chronically failed to pay its rent, having forced defendant to bring 10 nonpayment proceedings over the last seven years. This is a breach of a substantial obligation under the lease ( see Adam's Tower Ltd. Partnership v. Richter, 186 Misc.2d 620, 621, 717 N.Y.S.2d 825 [App. Term, 1st Dept. 2000] ), and is a type of default that plaintiff cannot cure within the 15–day cure period provided for in the lease ( see id. at 622, 717 N.Y.S.2d 825). Accordingly, plaintiff was properly denied a Yellowstone injunction, since that relief requires a showing that plaintiff is able to cure ( see Graubard Mollen Horowitz Pomeranz & Shapiro v. 600 Third Ave. Assoc., 93 N.Y.2d 508, 514, 693 N.Y.S.2d 91, 715 N.E.2d 117 [1999] ).

Defendant was not limited to a nonpayment proceeding under the term of the lease that provided for such proceedings for nonpayment. Chronic nonpayment is a violation of a different type than occasional nonpayment ( see 326–330 E. 35th St. Assoc. v. Sofizade, 191 Misc.2d 329, 331–332, 741 N.Y.S.2d 380 [App. Term, 1st Dept. 2002] ). Nor can plaintiff rely on any defect of the notice of default, since no such notice is even necessary for an action based on chronic nonpayment ( see 3363 Sedgwick v. Medina, 187 Misc.2d 421, 723 N.Y.S.2d 592 [App. Term, 1st Dept. 2000] ). Furthermore, contrary to plaintiff's contention, there are no equitable considerations that would require a different result.

GONZALEZ, P.J., RENWICK, DeGRASSE, MANZANET–DANIELS, FEINMAN, JJ., concur.