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This is the third in a series of articles exploring whether parties to a commercial lease can contractually waive a tenant’s right to seek a Yellowstone injunction. The first article, “Are Yellowstone Waivers Enforceable?,” NYLJ, April 10, 2014, at 4, col. 1, was written before any appellate authority existed on the issue. Our second article, “As it Turns Out, Yellowstone Waivers Are Enforceable,” 34 NY Real Estate Law Reporter 5 (April, 2018), written four years later, discussed the evolution of the law following the seminal holding in 159 MP Corp. v Redbridge Bedford, LLC, 160 AD3d 176 (2d Dept 2018). (Both prior articles were co-authored by Joshua Kopelowitz and Jeffrey Turkel.) In Redbridge, the Appellate Division Second Department, citing our article, held that parties to a commercial contract are free to limit a tenant’s ability to seek a declaratory judgment and, specifically, a Yellowstone injunction. On May 7, 2019, the Court of Appeals, in 159 MP Corp. v Redbridge Bedford, LLC, 2019 NY Slip Op 03526, affirmed the Second Department’s ruling and reasoning, thereby leaving no doubt that a contractual waiver of a right to seek a declaratory judgment and/or a Yellowstone injunction in a commercial lease is enforceable.
By Stewart E. Sterk and Michael C. Pollack
When a landowner contends that government action has effected a taking of her property without just compensation in violation of the Fifth Amendment to the U.S. Constitution, where can she sue? Until this past June, when the Supreme Court decided Knick v. Township of Scott, the answer was clear: state court and only state court. Knick changed all that.
Mortgagee Entitled to Deficiency Judgment When Mortgagor’s Submissions Are Insufficient to Rebut Mortgagee’s Appraisal
Foreclosure Action Proceeds Despite Failure to Formally Discontinue Prior Foreclosure Action
Forbearance Agreement Tolled Statute of Limitations
Foreclosure Proceeding Dismissed for Lack of Standing Did Not Accelerate Mortgage
Landlord Failed to Rebut Presumption of Willfulness
Landlord Substantiated Individual Apartment Improvements
Vacatur of Stipulation for Use and Occupancy Overturned
Occupant’s Deception Waived Succession Rights
Setting Rent for Unit First Decontrolled In 1954
Commercial Units Should Be Counted In Determining Amount of Reserve Fund