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KB GALLERY, LLC, Appellant, v. 875 W. 181 OWNERS CORP., Respondent.

The motion court properly found that plaintiff did not timely seek Yellowstone relief ( see First Natl. Stores v Yellowstone Shopping Ctr., 21 NY2d 630), since plaintiff did not make its application until after the applicable cure period had expired and the notice of termination had been served ( see 319 Smile Corp. v Forman Fifth, LLC, 37 AD3d 245, 245; JH Parking Corp. v East 112th Realty Corp., 298 AD2d 258). We reject plaintiff's contention that a Yellowstone application brought after the expiration of the applicable cure period will be deemed timely as long as it is made before the lease in question is actually terminated ( see Korova Milk Bar of White Plains, Inc. v PRE Props., LLC, 70 AD3d 646, 647-648).

We have considered plaintiffs other arguments and find them to be unpreserved and unavailing.

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KB GALLERY v. 875 W. 181 OWNERS CORP
(Sep 23, 2010)