Opinion
654310/13, 1040, 1039.
05-03-2016
117–119 LEASING CORP., Plaintiff–Respondent–Appellant, v. RELIABLE WOOL STOCK, LLC, Defendant–Appellant–Respondent, Soho Sanctuary Ltd., Additional Defendant–Respondent–Appellant.
Certilman Balin Adler & Hyman LLP, East Meadow (Anthony W. Cummings of counsel), for appellant-respondent. Law Office of Jeffrey H. Roth, New York (Jeffrey H. Roth of counsel), for 117–119 Leasing Corp., respondent-appellant. Holland & Knight LLP, New York (Robert S. Bernstein of counsel), for Soho Sanctuary Ltd., respondent-appellant.
Certilman Balin Adler & Hyman LLP, East Meadow (Anthony W. Cummings of counsel), for appellant-respondent.
Law Office of Jeffrey H. Roth, New York (Jeffrey H. Roth of counsel), for 117–119 Leasing Corp., respondent-appellant.
Holland & Knight LLP, New York (Robert S. Bernstein of counsel), for Soho Sanctuary Ltd., respondent-appellant.
MAZZARELLI, J.P., FRIEDMAN, ANDRIAS, MOSKOWITZ, KAHN, JJ.
Order, Supreme Court, New York County (Anil C. Singh, J.), entered March 27, 2015, which granted plaintiff tenant's application for Yellowstone relief except as to its alleged failure to comply with the insurance requirements of the lease, unanimously affirmed, with costs, as to the relief granted, and appeal therefrom otherwise dismissed, without costs, as academic. Order, same court (Robert D. Kalish, J.), entered August 13, 2015, which, to the extent appealed from, denied defendant owner Reliable Wool Stock, LLC's motion to dismiss additional defendant Soho Sanctuary LLC as a party, unanimously affirmed, without costs.
The motion court properly treated the notice of termination as a notice to cure, and properly deemed the period between service of the notice and the termination date set forth therein as the cure period for the alleged defaults, since the lease incorporated by reference the end date of the period set forth in the termination notice as the date by which the lease would be terminated unless the defaults had been remedied (see Barsyl Supermarkets, Inc. v. Avenue P Assoc., LLC, 86 A.D.3d 545, 546–547, 928 N.Y.S.2d 45 [2d Dept.2011] ).
The application for relief was timely, since it was brought before the expiration of the cure period (see 166 Enters.
Corp. v. IG Second Generation Partners, L.P., 81 A.D.3d 154, 158, 917 N.Y.S.2d 143 [1st Dept.2011] ).
The alleged defaults for which relief was granted were curable (see Empire State Bldg. Assoc. v. Trump Empire State Partners, 245 A.D.2d 225, 229, 667 N.Y.S.2d 31 [1st Dept.1997] ). The motion court correctly determined that the tenant's failure to obtain insurance was not curable (see Kyung Sik Kim v. Idylwood, N.Y., LLC, 66 A.D.3d 528, 886 N.Y.S.2d 337 [1st Dept.2009] ) and that this alleged default was not waived (see Excel Graphics Tech. v. CFG/AGSCB 75 Ninth Ave., 1 A.D.3d 65, 69–70, 767 N.Y.S.2d 99 [1st Dept.2003], lv. dismissed 2 N.Y.3d 794, 781 N.Y.S.2d 292, 814 N.E.2d 464 [2004] ).
The motion court providently exercised its discretion in declining to drop subtenant Soho Sanctuary LLC as a party defendant (see CPLR 1003 ). Although Soho was not a necessary party, because it was not in contractual privity with the owner (see Asherson v. Schuman, 106 A.D.2d 340, 483 N.Y.S.2d 253 [1st Dept.1984] ), it was a proper party, because termination of the lease would terminate its subtenancy (see 64 B Venture v. American Realty Co., 179 A.D.2d 374, 376, 579 N.Y.S.2d 1 [1st Dept.1992], lv. denied 79 N.Y.2d 757, 583 N.Y.S.2d 193, 592 N.E.2d 801 [1992] ; World of Food v. New York World's Fair 1964–1965 Corp., 22 A.D.2d 278, 280, 254 N.Y.S.2d 658 [1st Dept1964] ; 380 Yorktown Food Corp. v. 380 Downing Dr., LLC, 107 A.D.3d 786, 788, 967 N.Y.S.2d 125 [2d Dept.2013], lv. denied 22 N.Y.3d 860, 2014 WL 148688 [2014] ). In view of the foregoing, it is unnecessary to address the parties' other arguments for affirmative relief.