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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 Carol A. Sigmond
New York City, particularly gentrifying areas of Brooklyn, Harlem, and Washington Heights, are seeing an upsurge of deed theft. Attorneys, architects, title companies, real estate brokers, agents, contractors, developers and construction managers need to be alert to this potential issue when blocks of properties are assembled for development in these neighborhoods.
Landlord’s Relet Does Not Relieve Breaching Tenant from Liability for Rent
Breaching Landlord Liable for Tenant’s Expenses In Preparing Leased Space
Apartments Withdrawn from Mitchell-Lama Not Rent-Stabilized
Default Formula Does Not Constitute Penalty, and Does Not Preclude Class Certification
Ambiguous Time of the Essence Notice Held Ineffective
Attorney Review Provision Permitted Cancellation of Contract
Mortgagee Entitled to Cancellatino of Erroneously Recorded Satisfaction
Co-Tenant Not Entitled to Appointment of Receiver
Fair Housing Act Claim Against Condominium Board Dismissed
Co-Op Unit Owner Entitled to Emotional Support Dog