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Massimo D'Angelo - Yellowstone - april 17 2018 nycla civil practice section


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Massimo D'Angelo spoke at NYCLA's Civil Court Practice Section discussing the basics of the Yellowstone development, how it impacts commercial tenants, and the elements of its new developments.

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Massimo D'Angelo - Yellowstone - april 17 2018 nycla civil practice section

  1. 1. Yellowstone Basics
  2. 2. First National Stores, Inc. v. Yellowstone Shopping Center, Inc., 21 N.Y.2d 630, 290 N.Y.S.2d 721, 237 N.E.2d 868 (1968) • Creature of case law which presents powerful tool for commercial Tenants to protect their leases. • You have a client that comes in 24 hours before the curative period in their Notice to Cure expires. – 1. i.e., existing building violations that need to be cured, or failure to meet some other obligation under the lease.
  3. 3. Commercial Tenants can use Yellowstone as their sword to stay tolling period in Notice to Cure, and enjoin landlord from terminating their lease or commencing a summary eviction proceeding.
  4. 4. Elements • Plaintiff has a commercial lease; • Plaintiff has been served with a Notice to Cure by Defendant; • Plaintiff has made this application within the cure period; and • Plaintiff has the ability and desire to cure any default, should the Court find that the Plaintiff has actually caused a default in the lease, to the extent required by the Notice.
  5. 5. Yellowstone relief is far easier to obtain than injunctive relief because of it has a lower threshold; it doesn’t require a showing of “probability of success on the merits” or “irreparable harm.” Some judges conflate the standards for issuing Yellowstone injunctions with those for standard injunctive relief under CPLR 6301, a much more stringent standard.
  6. 6. New Developments in Yellowstone Law
  7. 7. • 159 MP Corp. v. Redbridge Bedford, 2018 N.Y. Slip Op. 00537 (2d Dep’t 2018) • Holding: Upheld trial court’s ruling that tenant waived its right to bring a declaratory judgment action, which included a Yellowstone relief. • The Court found provision to be enforceable and not against public policy • The Court’s rationale was that because Yellowstone is derived purely from case law, it can be waived between sophisticated because business entities pursuant to an arms- length transaction. This case presently has far reaching implications, particularly for transactional lawyers crafting commercial lease agreements.
  8. 8. The Dissent authored by Justice Francesca E. Connolly posits that declaratory actions, and Yellowstone in particular, serve the public good, and therefore should inherently be protected although Yellowstone is not embodied in any statute. • Should Yellowstone fall within the ambit of a statutory protection which may not be waived even the parties’ specifically negotiate such a waiver in their lease. – It will be interesting to see if the Court of Appeals steps in to the fray
  9. 9. Hybrid Cases Which Granted Yellowstone Relief: • Mannis v. Jillandrea Realty Co., 94 A.D.2d 676 (1st Dep’t 1983) • Wilen v. Harridge House Associates, 94 A.D.2d 123 (1st Dep’t 1983) • Abramowitz v. 145 East 16th Street, LLC, 50 A.D.3d 594 (1st Dep’t 2008) • Seligman v. Parcel One, 170 A.D.2d 344 (1st Dep’t 1991) • Saada v. Master Apts, Inc., 152 Misc.2d 861 (NY Supreme 1991) [Trial Order] • De Soignies v. Cornasesk House Tenants’ Corp., 2002 WL 34180562 (NY Supreme 2002) [Trial Order]