Tag 380, LLC v. Sprint Spectrum, L.P. , 737 N.Y.S.2d 271 ( 2002 )

Order, Supreme Court, New York County (Edward Lehner, J.), entered September 20, 2001, which granted defendant’s motion for a Yellowstone injunction upon condition that it file an undertaking in the amount of $10,000 and held plaintiffs cross motion to punish defendant for contempt in abeyance pending trial of the action, unanimously affirmed, without costs.

The motion court properly exercised its discretion in granting defendant’s motion for a Yellowstone injunction, since defendant established that it had a commercial lease, received a notice of default from plaintiff/landlord, made its application for Yellowstone relief prior to the termination of the lease and had the desire and ability to cure the alleged default by means short of vacating the premises (see, First Natl. Stores v Yellowstone Shopping Ctr., 21 NY2d 630; and see, Graubard Mollen Horowitz Pomeranz & Shapiro v 600 Third Ave. Assoc., 93 NY2d 508, 514). In light of the conflicting allegations as to the type of alterations defendant was performing at the premises and the permits obtained by defendant therefor, an injunction is necessary to preserve the status quo until a trial can be conducted on the merits, at which time the parties’ additional contentions regarding each other’s “unclean hands” and bad faith may properly be resolved (see, Lew-Mark Cleaners Corp. v DeMartini, 128 AD2d 758). Concur — Williams, J.P., Ellerin, Lerner, Rubin and Marlow, JJ.