In a court case that began in February 2014, a trial judge in Brooklyn permitted a night club operator more than two years to demonstrate they could comply with city noise requirements and try to avoid getting their lease terminated. After multiple sound testing by both the tenant and the landlord, an expert recommended additional improvements. Despite the tenant’s own expert’s advice, the tenant did not obtain a proposal to complete the recommended work for another year and a half. In February 2016, The Trial Court granted the tenant a Yellowstone Injunction, which temporarily postponed eviction. The Landlord appealed the trial court’s decision and argued that the tenant had failed to provide evidence that it was willing and able to ‘cure the default’, and failed to remedy the problems identified by its own expert.
In September 2018, more than three years since the start of this action, the Appellate Court ruled that the tenant failed to demonstrate its willingness and ability to cure the violation. Since the tenant did not demonstrate any effort to correct the problem between the last test conducted by its own expert in October 2014 until their submission of reply papers to the Supreme Court on February 2016, they lost the case.
The case demonstrated the need to always do what you can to demonstrate to the Court that you are in fact willing and able to cure your defaults under a commercial lease. When you are seeking a Yellowstone Injunction, it is not enough to express your “willingness and ability” to cure the violation; you must meet this burden by “doing” the things that will “cure the violation,” whenever possible and to your fullest extent.
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