Michael Antongiovanni Featured in Long Island Herald's Ask the Lawyer

Publication Source: LIHerald.com

Q: Our company is a tenant in a commercial space and recently received a “notice to cure” from its landlord. The notice claims that we are in violation of certain non-monetary obligations of our lease, which is untrue, and demands that we cure such violations within a certain amount of time. Our landlord has not responded to our attempts to clear this matter up. Should we continue to try to resolve the issue with the landlord or may we simply ignore the notice, since the allegations are incorrect, and wait to see if the landlord takes any further action?

A: This is a common issue that arises in commercial landlord-tenant relations. In fact, it is so common that it has spawned its own subset of legal relief commonly known as a “Yellowstone injunction,” which is named after the seminal case concerning such relief, First Nat. Stores, Inc. v. Yellowstone Shopping Ctr., Inc., 21 N.Y.2d 630, 290 N.Y.S.2d 721 (1968). A notice to cure is not to be taken lightly, and most certainly not ignored. In most standard form commercial leases, the issuance of a notice to cure sets in motion a formal process that, if not timely addressed, can, and most likely will, result in a termination of your commercial lease.

The terms of your lease will often dictate the exact protocol, deadlines, rights and remedies that control this process. Generally speaking, however, a notice to cure will specify a certain amount of time in which the alleged violations must be cured. Depending on the terms of the lease, if the alleged violations are not cured within the stated amount of time, the lease may automatically terminate without further action being required, or the landlord may then take additional steps to terminate the lease, such as sending a notice of termination and/or commencing an eviction proceeding.

Once the stated cure period expires and the lease is terminated, courts are generally without the power to revive the lease even if you ultimately prove in a court of law that the landlord’s allegations are wrong. Therefore, in order to prevent this from happening, and to preserve your company’s valuable commercial lease, it is essential that, before the cure period expires, you seek and obtain from a proper court a Yellowstone temporary restraining order and injunction. Such Yellowstone relief has the important effect of stopping your time to cure from expiring and preventing the landlord from terminating the lease while a court decides the dispute. If the landlord’s allegations are ultimately proved wrong, you will have preserved your lease from being unfairly terminated. If the allegations are ultimately proved correct, the Yellowstone injunction will allow you time to correct the violation and, therefore, also preserve your lease.

So, in sum, to answer your question, do not ignore the notice or waste additional time trying to resolve the dispute with the unresponsive landlord. Time is of the essence in these situations and, upon receipt of such a notice to cure, you should immediately consult with an experienced attorney who can analyze your lease and properly advise you of your rights and alternatives, which very likely may include seeking immediate Yellowstone relief from a court.

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