East 4th Street Garage, Inc. v. L.B. Management Co.

Apr 16, 1991
Versions:172 A.D.2d 292
568 N.Y.S.2d 111
1991 N.Y. App. Div. LEXIS 4757

Order, Supreme Court, New York County (Phyllis Gangel-Jacob, J.), entered July 11, 1990, which granted the plaintiff’s motion for a preliminary injunction enjoining defendant from, inter alia, terminating the lease, unanimously affirmed, with costs.

The IAS court properly granted injunctive relief, whether measured under the test for a Yellowstone injunction (Stuart v D & D Assocs., 160 AD2d 547) or measured under the traditional test for a preliminary injunction (Rosenthal v Mahler, 141 AD2d 625). A termination clause in a lease does not result in automatic termination if it requires some action on the part of the landlord (Perrotta v Western Regional Off-Track Betting Corp., 98 AD2d 1). Long-standing acceptance of late payment of rent can constitute waiver by the landlord of the right to enforce strictly a deadline for payment of rent (61 E. 72nd St. Corp. v Zimberg, 161 AD2d 542). The agreement *293provides for notice to be given by the landlord, and a notice of default sent in the attorney’s name is ineffective where the attorney was not named as agent in the agreement (Film-trucks, Inc. v Express Indus. & Term. Corp., 127 AD2d 509). Although none of these issues can be determined as a matter of law at this time, the plaintiff has shown a likelihood of success on the merits on each of them. Concur—Sullivan, J. P., Wallach, Asch and Smith, JJ.