RD Branch Associates, L.P. v. Hook-Superx, Inc.

—In an action, inter alia, for a judgment declaring that the defendant is prohibited from using its leased premises to operate a one-hour photo laboratory, the defendant appeals from an order of the Supreme Court, Suffolk County (Underwood, J.), dated February 23, 2000, which granted the plaintiff’s motion for a preliminary injunction and denied its cross motion for a Yellowstone injunction.

Ordered that the order is modified, on the law, by deleting the provision thereof denying the defendant’s cross motion for a Yellowstone injunction and substituting therefor a provision granting the cross motion; as so modified, the order is affirmed, without costs or disbursements.

Contrary to the defendant’s contention, the Supreme Court properly granted the plaintiff’s motion for a preliminary injunction barring it from operating a one-hour photo laboratory during the action. In support of its motion, the plaintiff sustained its burden of demonstrating a likelihood of success on the merits based on the language of the restrictive use clause in the parties’ lease (see, Dennis & Jimmy’s Food Corp. v Milton Co., 99 AD2d 477 , affd 62 NY2d 613 ; see also, Mostazafan Found, v Rodeo Plaza Assocs., 151 AD2d 347 ; Anzalone v Normant Drugs, 136 Misc 2d 995 ). The plaintiff also established that it would suffer irreparable injury absent the issuance of the injunction, and that a balancing of the equities is in its favor (see, Forty-Seventh-Fifth Co. v Nektalov, 225 AD2d 343 ; Mostazafan Found, v Rodeo Plaza Assocs., supra; Anzalone v Normant Drugs, supra).

However, the Supreme Court should have granted the defendant’s cross motion for a Yellowstone injunction tolling the 30-day cure period under the lease and allowing it an opportunity to cure the alleged default if the court renders a final determination on the merits that its operation of the one-hour photo laboratory is a violation of the lease (see, First Natl. Stores v Yellowstone Shopping Ctr., 21 NY2d 630 ; Graubard Mollen Horowitz Pomeranz & Shapiro v 600 Third Ave. Assocs., 93 NY2d 508 ; Waldbaum, Inc. v Fifth Ave. of Long Is. Realty Assocs., 85 NY2d 600 ; Terosal Props. v Bellino, 257