GOLDSTEIN v. KOHL'S

Ordered that the order and judgment is affirmed, with costs, and it is declared that the lease was properly terminated.

An application for a Yellowstone injunction ( see First Natl. Stores v. Yellowstone Shopping Ctr., 21 NY2d 630), must be made prior to the termination of the lease, as courts cannot reinstate a lease after the lapse of the time specified to cure a default ( id. at 638; see King Party Ctr. of Pitkin Ave. v. Minco Realty, 286 AD2d 373, 375; Long Is. Gynecological Servs. v. 1103 Stewart Ave. Assoc. Ltd. Partnership, 224 AD2d 591, 593). Contrary to the appellants' contentions, their motion for a Yellowstone injunction was untimely since they commenced this action after the defendant properly issued a notice of termination of the lease.

Furthermore, the notice to cure and the notice of termination prepared by the defendant's in-house senior attorney were properly served, as the appellants did not reject the notice and acted on the notice immediately ( see Rogers v. New York Tel. Co., 74 AD2d 526).

In opposition to the defendant's prima facie showing of entitlement to judgment as a matter of law on that branch of its cross motion which was summary judgment dismissing the complaint, the appellants failed to raise a triable issue of fact, including, inter alia, whether the defendant breached the lease and whether the appellants were in default on the lease.

The appellants' remaining contentions are without merit.