Order to Show Cause for Yellowstone Injunction
(NY)

Summary

This Order to Show Cause for Yellowstone Injunction (NY) is a standard form that attorneys can use to move for Yellowstone injunctive relief in a civil action in New York State Supreme Court. This template contains practical guidance, drafting notes, and optional clauses. A Yellowstone injunction is a provisional remedy available to a commercial lease tenant to enjoin the landlord from terminating the subject lease and to toll the tenant's time to cure an alleged default or breach under the lease. See Marathon Outdoor v. Patent Constr. Sys. Div. of Harsco, 760 N.Y.S.2d 528 (2d Dep't 2003). The injunction preserves the status quo and allows the lease to remain in effect during the pendency of the leasehold dispute. See Time Square Stores Corp. v. Vernice Realty Co., 484 N.Y.S.2d 591, 594 (2d Dep't 1985). To obtain a Yellowstone injunction, your client must establish that it: • Holds a commercial lease • Received from the landlord a: ○ Notice of default ○ Notice to cure –or– ○ Threat of lease termination • Moved for injunctive relief before the landlord terminated the lease • Is prepared and maintains the ability to cure the alleged default by any means short of vacating the premises See First Nat'l Stores, Inc. v. Yellowstone Shopping Ctr., Inc., 21 N.Y.2d 630 (1968); Graubard Mollen Horowitz Pomeranz & Shapiro v. 600 Third Ave. Assocs., 93 N.Y.2d 508 (1999). While a Yellowstone injunction and a preliminary injunction are similar, they differ in that the standard for obtaining a Yellowstone injunction is far less exacting than for a preliminary injunction. See Marathon Outdoor v. Patent Constr. Sys. Div. of Harsco, 760 N.Y.S.2d 528 (2d Dep't 2003); 225 E. 36th St. Garage Corp. v. 221 E. 36th Owners Corp., 621 N.Y.S.2d 302 (1st Dep't 1990). If your client is a commercial tenant and faces termination of its leasehold interest, you should immediately file: • A declaratory judgment action to adjudicate the alleged default underlying the lease termination –and– • A motion in that action to impose a Yellowstone injunction See 159 MP Corp. v. Redbridge Bedford, LLC, 71 N.Y.S.3d 87, 94 (2d Dep't 2018). Since timing is a paramount concern when seeking Yellowstone injunctive relief, consider filing your motion by order to show cause in lieu of a notice of motion. An order to show cause is an application made to the court —on short notice —to obtain an order directing the opposing party to show cause why the movant should not receive the relief sought. The primary advantage to filing an order to show cause is that it shortens the prescribed motion deadlines and allows the court to hear your motion on an expedited schedule. Once presented, the court will set an expedited return date—or time and place the court will hear your motion—and a compressed briefing schedule. New York law permits orders to show cause in a proper case. See N.Y. C.P.L.R. § 2214(d); 22 NYCRR 202.8-d. (Orders to show cause in the commercial division are governed by 22 NYCRR 202.70(g), Rule 19.) This includes cases in which: • There is genuine urgency. Parties commonly use orders to show cause to shorten the eight or 16-day notice periods the C.P.L.R. requires for motions on notice. See N.Y. C.P.L.R. § 2214(b); 22 NYCRR 202.8-d. • A stay is required. A party may file an order to show cause to obtain emergent temporary relief, such as a stay or a temporary restraining order to maintain the status quo until the court hears the motion. 22 NYCRR 202.8-d. • A statute or rule requires an order to show cause. Some statutes or rules explicitly require the court to direct the notice a movant must provide, which the court can do through an order to show cause. See, e.g., N.Y. C.P.L.R. 5015(a) (requiring a party seeking relief from a judgment to make a motion with such notice as the court may direct). 22 NYCRR 202.8-d; see, e.g., N.Y. C.P.L.R. § 5015(a) (requiring a party seeking relief from a judgment to make a motion with such notice as the court may direct). For a full listing of key content covering fundamental civil litigation tasks throughout a New York court litigation lifecycle, see Civil Litigation Fundamentals Resource Kit (NY). For more information on Yellowstone injunctions in New York, see Provisional Remedies: Obtaining a Yellowstone Injunction (NY). For a related checklist, see Provisional Remedies: Obtaining a Yellowstone Injunction Checklist (NY). For information on provisional remedies in New York, see Provisional Remedies Fundamentals (NY). For more information on filing orders to show cause in New York, see Orders to Show Cause and Ex Parte Applications (NY). For a detailed discussion of Yellowstone injunctive relief, see Warren's Weed New York Real Prop. §§ 154.01–154.21.