The Yellowstone injunction: freezing your lease cure period before it kills the tenancy.

A Yellowstone injunction is a court order that tolls the cure period in your landlord’s notice to cure. It holds the commercial lease in place while a judge decides whether you actually defaulted. You must ask before that cure period expires. Miss it and no court can revive the lapsed cure period. The relief is discretionary, not automatic.

What is a Yellowstone injunction and what does it actually do?

A Yellowstone injunction is a preliminary injunction from New York Supreme Court that tolls the cure period stated in a commercial landlord’s notice to cure. It does not decide whether you defaulted. It freezes the lease long enough for a judge to rule, so a losing tenant can still cure and avoid forfeiture.

The name comes from a 1968 Court of Appeals case. The Fire Department directed the landlord to install a sprinkler system in the cellar of a Forest Hills supermarket. The landlord said the cost was the tenant’s and served a notice to cure. The tenant sued for a declaration on the last day of the cure period but never got a stay. The period ran out, the landlord terminated, and no court could revive the lease.

Out of that loss came the practice. The Court of Appeals describes the device as holding the status quo, tolling the cure period so a losing tenant can still cure.

Law: First Natl. Stores v Yellowstone Shopping Ctr., 21 NY2d 630 (1968); Graubard Mollen Horowitz Pomeranz & Shapiro v 600 Third Ave. Assocs., 93 NY2d 508, 514 (1999).

The remedy is primarily commercial, not exclusively. Residential tenants in New York City have a statutory post-judgment period to cure, which reduced the need for it there. Tenants outside the city lack that statute, and the Second Department has held the relief still available to them.

Law: RPAPL 753(4); Post v 120 E. End Ave. Corp., 62 NY2d 19, 25-26 (1984); Hopp v Raimondi, 51 AD3d 726, 727 (2d Dept 2008).

What are the four elements of a Yellowstone injunction in New York?

The four elements of a Yellowstone injunction come from the Court of Appeals decision in Graubard Mollen. A tenant must hold a commercial lease, must have received a notice of default or notice to cure or threat of termination, must have requested injunctive relief before the lease terminated, and must be prepared and able to cure.

• You hold a commercial lease. Attach it and identify the default and notice clauses by paragraph.
• The landlord served a notice of default, a notice to cure, or a threat of termination. Any of the three will do. Waiting for a termination notice kills tenancies.
• You requested injunctive relief before the lease terminated. The Court of Appeals stated it that way. The Appellate Divisions read it harder: move before the cure period expires.
• You can cure by any means short of vacating. You need not concede the default. You must show that if the judge rules against you, you can and will fix the condition without surrendering possession.

Law: Graubard Mollen, 93 NY2d at 514; JT Queens Carwash, Inc. v 88-16 N. Blvd., LLC, 101 AD3d 1089, 1090 (2d Dept 2012).

Notice what is missing. You do not have to prove you will win. The Court of Appeals has explained that an applicant has rarely been required to show likelihood of success, irreparable injury, and equities favoring relief, because “the threat of termination of the lease and forfeiture, standing alone, has been sufficient.” That lighter showing is not a guarantee. The relief is discretionary, a curable default is its lynchpin, and grants get reversed too.

Law: Post, 62 NY2d at 25; 166 Enters. Corp. v I G Second Generation Partners, L.P., 81 AD3d 154, 158 (1st Dept 2011).

Law: CPLR 6312(b); Goldcrest Realty Co. v 61 Bronx Riv. Rd. Owners, Inc., 83 AD3d 129, 135 (2d Dept 2011); Gap, Inc. v 170 Broadway Retail Owner, LLC, 195 AD3d 575, 576 (1st Dept 2021).

Why must the motion be filed before the cure period ends?

Timing controls the Yellowstone injunction. The application must be made before the cure period in the notice to cure expires. It is not enough to file before the termination date stated in a later notice of termination. The First and Second Departments both enforce the earlier deadline. One day late is fatal.

Take the White Plains restaurant tenant. Its notice to cure set a cure date of July 15, 2009. A termination notice followed a week later. The tenant sued and moved on July 27, nearly two weeks after the cure period closed. Supreme Court denied the motion; the Second Department affirmed. Courts cannot reinstate a lease after the time to cure has lapsed.

Law: Korova Milk Bar of White Plains, Inc. v PRE Props., LLC, 70 AD3d 646, 647 (2d Dept 2010), quoting Goldstein v Kohl’s, 16 AD3d 622, 623 (2d Dept 2005).

A later case shows how narrow the window is. The tenant moved one day before the termination date in the notice of termination. That sounds early. It was not. The cure period had closed twelve days earlier. Supreme Court granted the injunction; the Second Department reversed it as untimely and held that a fallback injunction under CPLR 6301 carries the same deadline.

The First Department reads the third element the same way. The tenant must move before the cure period in the landlord’s notice expires, and relief granted after that has been reversed.

Law: Goldcrest Realty Co., 83 AD3d at 133-135; Gap, Inc., 195 AD3d at 576; Prince Fashions, Inc. v 542 Holding Corp., 15 AD3d 214, 215 (1st Dept 2005).

Being early on the wrong deadline is still being late. The date that matters is the last day of the cure period, not the termination date printed on a later notice.

What happens if you miss the cure period without an injunction?

Without a Yellowstone injunction or a temporary restraining order, the cure period simply runs out. New York courts cannot reinstate a commercial lease after the time to cure has lapsed. The tenant then litigates the default at peril: an adverse ruling on the merits ends the tenancy with no second chance to fix anything.

Two qualifications matter. What is lost is the cure period, not your defenses: you can still argue no default occurred, the notice was defective, or the landlord waived the condition. But do not plan on a substitute. In the Second Department, CPLR 6301 relief carries the same cutoff.

Those defenses are all-or-nothing. Find one curable breach you did not cure in time and the lease is terminated. Improvements stay behind. The location and its goodwill are gone. Subtenants generally lose rights that depended on yours. And a good-guy guaranty usually conditions release on a compliant surrender, which an eviction is not.

How does the declaratory judgment action interact with the Yellowstone motion?

Declaratory relief is the vehicle that carries the Yellowstone injunction. A tenant commences an action in Supreme Court seeking a declaration that no default occurred under the lease, then moves by order to show cause for an injunction tolling the cure period. The injunction is provisional. The declaration is the actual relief sought.

The endgame is what tenants misunderstand. The injunction makes sure the court’s answer still matters when it arrives. If the court declares you did not default, the notice to cure is a nullity. If it declares that you did, you are not automatically out. The tolled cure period resumes, commonly on terms the court sets, and you cure inside it, if you actually cure.

Can your commercial lease take the Yellowstone remedy away from you?

Some commercial leases contain a clause waiving the tenant’s right to bring a declaratory judgment action. The Court of Appeals enforced one of those clauses in 2019. The Legislature answered within months by enacting Real Property Law 235-h, which declares such waiver provisions in commercial leases null and void as against public policy.

There, the leases waived the tenant’s right to seek a declaration as to any lease provision or notice. The Court held the waiver enforceable against sophisticated, counseled parties and affirmed dismissal. The tenants kept their defenses in a summary proceeding but lost the Supreme Court vehicle, and with it the injunction.

Law: 159 MP Corp. v Redbridge Bedford, LLC, 33 NY3d 353 (2019).

Section 235-h was signed in December 2019 and took effect immediately. It says nothing about retroactivity, and courts have declined to apply it backward to leases signed earlier. Treat your lease date as a live issue, not a settled one.

Law: Real Property Law 235-h.

So find that clause tonight. Search the lease for “declaratory judgment.” If it is there, note when the lease was signed and whether it was renewed, extended, or amended after December 2019. Settle that before anyone drafts the order to show cause.

Does a Yellowstone injunction let you stop paying rent?

A Yellowstone injunction does not suspend rent. Rent, additional rent, and contractual interest on late payments keep running under the lease while the order is in place. Courts also condition Yellowstone relief on payments, and CPLR 6312(b) calls for an undertaking in an amount the court fixes.

A Manhattan law firm tenant learned this. Its injunction was conditioned on paying into escrow. It then argued the escrow condition displaced the lease’s requirement of timely rent and the interest on arrears. The Court of Appeals disagreed. Conditions placed on a Yellowstone injunction do not alter the parties’ rights and obligations. The point of reference is the lease, not the order.

Law: Graubard Mollen, 93 NY2d at 514-515, citing Waldbaum v Fifth Ave. of Long Is. Realty Assoc., 85 NY2d 600, 606 (1995).

The Court of Appeals put it in one line: “The Yellowstone injunction protected the firm from eviction; it did not rewrite the lease.”

Budget accordingly. Assume the court fixes an undertaking, or directs rent pendente lite if you stay in possession, and conditions the order on paying rent as it comes due. Breathing room, not a payment holiday.

Which defaults can a Yellowstone injunction not save?

Element four of the Yellowstone test filters out defaults that cannot be undone. A tenant must be prepared and able to cure the alleged default by any means short of vacating the premises. A lapsed insurance period, a completed transfer, or conduct that has already happened can be very hard to fit inside that requirement.

Insurance is the recurring fight. Some courts treat a coverage gap as incurable, because the lease required protection for a window that has closed. Others grant relief where the tenant produces replacement coverage and stands behind the gap. Document how it gets closed.

The second trap is structural. The injunction tolls the applicable cure period. Where the lease gives no right to cure the default alleged, there is nothing to freeze. Read the default clause first.

Law: 166 Enters. Corp., 81 AD3d at 158.

The third trap is delay. Once the cure period closes, the timing argument is over. The answer to a notice to cure is never three weeks of negotiating and then a call to a lawyer.

What should you do in the next 24 hours?

The first move after a notice to cure is to calendar the last day of the cure period and work backward from it. Everything else follows that date. Locate the notice, the lease, and the guaranty, then get an order to show cause with a temporary restraining order on file before the period closes.

• Date the notice to cure. Keep the envelope. Service method and date fix when the clock started.
• Calendar the final cure date. Set an internal deadline several days earlier. That is your real deadline.
• Pull three provisions. The default and cure clause, the notices clause, and any declaratory judgment waiver.
• Read the guaranty. Payment, good-guy, or both, and what it demands on surrender.
• Assemble cure proof now. Contractor proposals, insurance binders, permit filings. Element four is proven with documents.
• Keep paying rent and use and occupancy. On time, in full, with records.
• Do not sign what the landlord sends. A stipulation extending the cure period can waive defenses.
• Get counsel moving today. Action, declaratory claim, affidavit, and proposed restraining order, all before the period ends.

The Yellowstone injunction does not win your argument. It keeps you alive long enough to have it. New York courts have granted it for more than fifty years to tenants who asked in time. The unforgivable move is asking a day late.