134 A.D.2d 492 | N.Y. App. Div. | 1987
In two separate actions for judgments declaring the rights of
Ordered that the appeal from the order entered January 27, 1987 is dismissed, as no appeal lies from an order denying reargument; and it is further,
Ordered that the order entered January 9, 1987 in action No. 1 is reversed, on the law, the motion is granted, and the cross motion is denied, and the defendant is hereby enjoined from taking any action to declare the plaintiff in breach of the parties’ lease of the premises located at 1000 West Montauk Highway, Babylon, New York; and it is further,
Ordered that the order entered January 9, 1987 in action No. 2 is reversed, on the law, the motion is granted, the cross motion is denied, and the defendant is hereby enjoined from taking any action to declare the plaintiff in breach of the parties’ lease of the premises located at 2750 Linden Boulevard, Brooklyn, New York; and it is further,
Ordered that the plaintiff is awarded one bill of costs.
We conclude that the plaintiff’s motions for Yellowstone injunctions (see, First Natl. Stores v Yellowstone Shopping Center, 21 NY2d 630, rearg denied 22 NY2d 827) were improperly denied inasmuch as the evidence demonstrated the existence of a right to cure arising from the conduct of the parties, and the plaintiff exercised its right prior to the service of the termination notices (see, Times Sq. Stores Corp. v Bernice Realty Co., 107 AD2d 677, 680; Mann Theatres Corp. v