JH Parking Corp. v. East 112th Realty Corp.

Order, Supreme Court, New York County (Jane Solomon, J.), entered August 20, 2001, which denied plaintiff’s motion for a Yellowstone injunction and dismissed the complaint, unanimously affirmed, with costs.

The record discloses that plaintiff did not timely seek injunctive relief since the order to show cause that effected a temporary restraining order and tolled the cure period, pending the hearing on the Yellowstone application, was signed by the motion court after the cure period had ended and after service of the notice of termination (see Daashur Assoc. v December Artists Apt. Corp., 226 AD2d 114, 114-115). The motion therefore could have been denied as untimely (see Weaver v Essex Owners Corp., 235 AD2d 369, 370, lv denied in part and dismissed in part 89 NY2d 1073). In any event, the record supports the motion court’s conclusion that plaintiff would not or could not cure the alleged default by means short of vacating the premises, and therefore could not establish its entitlement to Yellowstone relief (see Graubard Mollen Horowitz Pomeranz & Shapiro v 600 Third Ave. Assoc., 93 NY2d 508, 514). Concur — Williams, P.J., Nardelli, Andrias and Marlow, JJ.