When a tenant defaults in the performance of lease-related obligations, a landlord usually reserves the right to bring that tenancy to a premature end by issuing one or more notices as may be required by the governing agreement's "default" provision.
The process--also known as "exercising the conditional limitation"--typically involves two steps. A landlord must first give a "notice to cure" which affords the tenant an opportunity to correct (or diligently commence correction of) the delineated objection. Upon the lapse of that curative period, the landlord may bring the tenancy to a premature end by serving a second document, usually known as a "notice of termination."
If a tenant disputes the existence of a "default" (or otherwise objects to the propriety of the curative notice), a special injunctive remedy is available to stop (or "toll") the running of the landlord's notice until such time as a court has had an opportunity to decide the dispute on the merits. Since a tenant's complacency or inaction could lead to a forfeiture of the lease, appellate caselaw--harking back to the New York State Court of Appeals's 1968 decision in First Natl. Stores v. Yellowstone Shopping Ctr.--commands that the tenant seek this special injunction before the cure notice expires.
With a few exceptions, post-cure applications will be denied, as was reinforced by the outcome of the tenant's appeal in 319 Smile Corp. v. Forman Fifth, LLC. In a decision released yesterday, the Appellate Division, First Department, concluded as follows:
The court properly found that plaintiff did not timely seek injunctive relief, since the order to show cause that brought about a temporary restraining order and tolled the cure period pending the hearing on the Yellowstone application was not obtained until after the cure period had ended and the notice of termination served ....
Bet the tenant wasn't smiling when it got that decision.
For a copy of the Appellate Division's decision in 319 Smile Corp. v. Forman Fifth, LLC, please click the following link: http://www.nycourts.gov/reporter/3dseries/2007/2007_01215.htm