The ability to obtain a “Yellowstone” injunction has long been a saving grace for commercial tenants faced with a disputed default under their lease. A recent decision of the New York State Appellate Division, however, could shift the balance of power in commercial landlord/tenant relationships.

Typically, when a landlord notifies a tenant of an alleged default, the notice provides an opportunity to cure, the timeframe for which can be anywhere from a few days to a month, based on the terms of the lease. If the default is not cured prior to expiration of the relevant time period, the lease and the tenant’s rights to the property can be terminated, which cannot be undone as a matter of law.  If the tenant disputes the basis for the default and seeks a determination from the court, it is essentially impossible for the court to resolve the dispute before the cure period expires.  In addition, the timeframes provided to cure alleged defaults offer little flexibility for a tenant to investigate the facts, come to a conclusion, and take corrective action. The Yellowstone injunction, so-named for the seminal case in which one was issued, is designed to protect tenants in these circumstances.

A Yellowstone enables a tenant to toll the expiration of the default notice until a determination is made as to whether a default exists and whether it is the tenant’s responsibility to cure. The threshold for granting a Yellowstone injunction is not a stringent one; the tenant need only show (1) it is a party to a commercial lease, (2) the tenant’s landlord has provided it with a notice alleging default, which provides a timeframe for the tenant to cure, (3) the expiration of the timeframe has not passed, and (4) if it is determined that a default exists, the tenant is ready, willing and able to cure the default. 159 MP Corp. v. Redbridge Bedford, LLC, No. 2015-01523 (N.Y. App. Div. Jan. 31, 2018).

This is a lower standard than what a party must typically demonstrate to obtain injunctive relief under New York law, making the issuance of Yellowstone injunction fairly commonplace in commercial lease disputes. This lower barrier to entry demonstrates New York’s longstanding public policy against the forfeiture of property interests. Vil. Ctr. for Care v Sligo Realty and Serv. Corp., 95 AD3d 219, 222 (1st Dept 2012). As with any contractual negotiation, the parties to a commercial lease can utilize their negotiating positions to preserve or waive certain legal rights. However, courts rarely enforce waivers of a right when the right is a matter of public policy, as the preservation of property rights by a Yellowstone injunction has long been held to be by the courts.

The recently decided case, 159 MP Corp. v. Redbridge Bedford, LLC, involved a commercial lease that included a provision whereby the tenant waived its right to declarative relief, e.g. the issuance of a Yellowstone injunction. The Appellate Division, Second Department affirmed the lower court’s ruling enforcing the waiver provision, on the basis that the Legislature had not enacted any legislation prohibiting such waivers. Absent such legislation, the court stated, the notion of barring the waiver of a right based on public policy “does violence to the notion that the parties are free to negotiate and fashion their contracts with terms to which they freely and voluntarily bind themselves.” This decision marks a departure from existing case law declaring such waivers void based on public policy. See Sligo Realty.

In light of this apparent conflict between the First and Second Departments, which govern the five boroughs of New York City and surrounding counties, this issue appears ripe for appeal to New York’s highest court, the Court of Appeals. In the 159 MP Corp. case, the tenant must make a motion for leave to appeal to the Court of Appeals, and the Court can then exercise its discretion in granting or denying such a motion. The Court of Appeals may very well view the discrepancy between these neighboring courts as too divergent to remain unreconciled, and hear a further appeal. The decision on such an appeal would then provide guidance on the issue statewide.

Until then, however, New York commercial landlords should consider including provisions waiving a tenant’s right to declaratory relief in their commercial leases, whether the property is located in the Second Department (Kings (Brooklyn), Queens, Richmond (Staten  Island), Nassau, Suffolk, Westchester, Rockland, Putnam, and Orange counties) or not. Tenants, on the other hand, should take the Second Department’s decision into account when considering their negotiating positions and, if their lease contains a waiver of Yellowstone rights, determining how to respond to a notice of default. Landlords and tenants should consult with their legal counsel so as to stay abreast of such developments of the law, including the rights the courts can be relied on to protect and, more importantly, the rights they will not.


The New York City Council approved a bill on Thursday, November 30, that impacts thousands of small business owners located south of 96th Street in Manhattan. The bill modifies the threshold that businesses must meet in order to be exempt from paying the 3.9 percent New York City commercial rent tax, which is imposed upon businesses located south of 96th Street in Manhattan. Businesses operating in the Bronx, Queens, Brooklyn and Staten Island are not subject to the tax and are not impacted by this legislation. Though Mayor Bill de Blasio initially opposed the bill as it is projected to remove $38.6 million in revenue in fiscal year 2019, it is expected that he will sign the bill into law. The measure also had the support of Council Speaker Melissa Mark-Viverito. Once signed, it will become effective July 1, 2018.

Prior to the bill’s passage, businesses who paid more than $250,000 a year in base rent were required to pay the tax. The bill will raise this threshold, allowing businesses who make $5 million or less in annual income and pay less than $500,000 in annual rent to be exempt from the tax. The bill also provides a partial, sliding credit for (1) businesses making $5 million or less a year and paying between $500,000 and $550,000 a year in rent and (2) businesses making between $5 million and $10 million a year and paying less than $550,000 in annual rent.

The bill also provides exemptions for not-for-profit organizations and businesses located in certain areas, such as the World Trade Center area or those areas impacted by the Lower Manhattan Commercial Revitalization Program.

A credit for businesses that pay between $250,000 and $300,000 in annual rent, without consideration of annual income, is left unchanged.

In a recent tax court case, Holy Trinity Baptist Church v. City of Trenton (Docket No. 015909-2014, February 2, 2017), the court overturned the findings of the County Board of Taxation and upheld the tax exemption for religious/charitable use of properties pursuant to N.J.S.A. 54:4-6.3.  This statute exempts properties from taxation where “buildings [are] actually used in the work of associations and corporations organized exclusively for religious purposes, including religious worship, or charitable purposes.”  The Holy Trinity decision comes at a time when municipalities are aggressively challenging tax exemptions and was preceded by two other significant tax court cases discussed below.

Commencing with the tax court’s decision in AHS Hospital Corp. v. Town of Morristown, 28 N.J. Tax 456 (Tax 2015), involving the Morristown Memorial Hospital, it appears that elevated scrutiny by municipalities is calling the exempt status of many non-profit organizations into question.  In Morristown Memorial, the tax court found that the hospital’s entanglement with for-profit activities undermined the hospital’s ability to satisfy the well-recognized three prong exemption test.  This test requires an organization to establish that:  1) The organization is a New Jersey non-profit entity; 2) The non-profit entity is acting consistent with its charter in the performance of religious/charitable functions; and 3) The activities performed on the property are not conducted for profit.  Paper Mill Playhouse v. Millburn Township, 95 N.J. 503 (1984).  In reaching its conclusion the court in Morristown Memorial focused on the hospital’s failure to satisfy the third prong of the test.  In part, the court concluded that the activities conducted and services provided by the many private, for-profit physicians, dictated a finding that a significant portion of the hospital facilities were in fact being used for profit.  The court there also concluded that it was unable to distinguish and segregate those portions of the hospital facilities where the involvement of for-profit activities did not apply.  Consequently, other than in the most distinct and limited areas (e.g., the hospital parking garage, auditorium and in-house fitness center), the hospital facilities were deemed to be taxable.

More recently, the tax court was asked to focus on the exemption afforded non-profit universities.  In Fields v. Trustees of Princeton University, a group of third-party taxpayers challenged the exemption afforded Princeton University.  Although that matter was resolved without a trial, it appears the settlement may have been precipitated by the University’s concern with what has been widely perceived to be an increasingly unfriendly environment for the exempt treatment of non-profits in the aftermath of the Morristown Memorial decision.  The settlement, which only temporarily resolves the ultimate exemption question, requires the University to pay over $18 million dollars in payments to third-parties and contributions to the municipality (in the form of payments in lieu of taxes) through the year 2022 when the University’s settlement obligations expire.

With this recent history and the presence of numerous pending cases specifically attacking the exemptions afforded non-profit hospitals throughout the state, the tax court’s decision in Holy Trinity may offer non-profits, at least religious organizations, some solace from what appears to be a concerted effort on the part of municipalities to challenge the efficacy of real property tax exemptions in all areas.  Importantly, the Holy Trinity court concluded that despite evidence indicating that religious activities on the subject church property had diminished (as the church purchased a new property for its operations and had already commenced the process of shifting its activities to this new location), the church continued to make actual use of the property in furtherance of its religious purposes.  In particular, the Holy Trinity court found that the church continued its schedule of weekly meetings, made the space in question available for future meetings and gatherings, conducted receptions, and stored books at the location in connection with its religious/charitable functions.  As a result, the continued application of the tax exemption was determined to be appropriate in Holy Trinity.

The Holy Trinity court also made clear that neither an intent to sell the property nor diminished use of otherwise exempt property in of itself will destroy the tax exemption.  The court’s decision is consistent with City of Hackensack v. Bergen County, where the listing of the property for sale and removal of certain items to increase the marketability of the property were found to be insufficient to undermine the exemption.  Id. 405 N.J. Super. 35 (App. Div. 2009).  Further, the Holy Trinity court acknowledged that a property remains exempt even where a property’s use is limited to the occasional storage of goods used in furtherance of religious and charitable purposes.  Borough of Hamburg v. Trustee of Presbytery of Newton, 28 N.J. Tax 311, 319-320 (Tax 2015).

Consequently, in the current ratable hungry environment, non-profit organizations must now be more vigilant in ensuring that their properties continue to be used for the organization’s exempt or charitable purposes.  Only by regularly reviewing the entity’s activities and documenting continued property usage for its non-profit purposes, can these organizations improve the prospect of preserving the significant benefits that flow from application of this statutory exemption.

The Third Circuit Court of Appeals issued a precedential opinion last week when it ruled that a New Jersey real estate developer had standing to pursue antitrust claims against the owner of a nearby ShopRite who engaged in anti-competitive activities designed at blocking the developer from bringing a Wegmans to its property.

In the case of Hanover 3201 Realty, LLC v. Village Supermarkets, Inc., et al., a developer, Hanover 3201 Realty, LLC (“Hanover Realty”), signed a contract with Wegmans to develop a full-service supermarket at its Hanover, New Jersey property.  The contract required Hanover Realty to secure all necessary governmental permits and approvals within two years, otherwise Wegmans could walk.  Soon thereafter, Village Supermarkets, Inc. (“Village”), the proprietor of a ShopRite supermarket in Hanover (in addition to two dozen others throughout New Jersey), took actions purportedly aimed at frustrating Hanover Realty’s efforts to obtain all requisite government approvals.  Such actions included: (i) filing an appeal with the New Jersey Department of Environmental Protection (“DEP”) concerning a flood hazard area permit that had been awarded to Hanover Realty, (ii) challenging a wetlands permit already awarded by the DEP to Hanover Realty, (iii) filing an objection with the New Jersey Department of Transportation suggesting that Hanover Realty, on top of making certain improvements to the intersection near the proposed Wegmans, should be compelled to construct an extensive highway overpass near the project, and (iv) commencing a state court lawsuit to nullify a rezoning approval Hanover Realty had obtained from Hanover Township in order to use the property for retail purposes.  These acts, all of which were either largely denied or rejected by the respective administrative or judicial authorities, led Hanover Realty to file a federal lawsuit alleging that the efforts of Village (along with its wholly-owned subsidiary that owns the ShopRite site) were anti-competitive shams designed for no other purpose than to unfairly block its efforts to bring Wegmans to that market space.

After the District Court first dismissed the suit, Hanover Realty appealed and the Third Circuit Court of Appeals reversed in part, holding that Hanover Realty’s injuries were “inextricably intertwined” with the noted anti-competitive conduct, and Hanover Realty thus met the legal standard for asserting a valid antitrust claim.  The Third Circuit found that the end goal of the misconduct was designed to injure Wegmans by keeping them out of the market.  In doing so, Hanover Realty, the party tasked with obtaining all necessary permits and approvals, was targeted by the sham petitions and was forced to unnecessarily incur substantial attorneys’ fees, costs and delays in its development plans.  While the Third Circuit limited its holding to allow Hanover Realty to pursue anti-monopolization claims in the market for full-service supermarkets (and not including the market for full-service supermarket rental space because the parties were not deemed “competitors” in that space), the Court also determined that the wrongful activities triggered the “sham exception” to the Noerr-Pennington doctrine, which ordinarily affords broad immunity from liability to those who petition the government for redress of their grievances.  The Court found that the anti-competitive activities that were intentionally lodged with no purpose other than to thwart Hanover Realty’s development activities with Wegmans were substantial enough to overcome this otherwise widely-applied privilege.

Whether or not Hanover Realty’s claims ultimately prove successful in the lawsuit, the Third Circuit’s ruling carries a meaningful warning for commercial landlords and tenants seeking to block the entry of a competitor in its market space.  Any such efforts must be strategically and tactfully employed with a legitimate purpose, in contrast to the borderline frivolous legal and administrative challenges from Village and ShopRite against Hanover Realty and Wegmans.  Though these types of anti-competition claims are still somewhat of a rare species in the commercial real estate arena, the Hanover Realty decision will certainly provide frustrated developers and landlords with another ace in their sleeve to fight against existing competitors trying to remain the only game in town.

On October 21, 2015, the New Jersey Appellate Division affirmed a trial court ruling that a South Jersey landlord did not violate a coffee-related exclusivity provision in its lease with Starbucks when it subsequently rented space in the same strip mall to McDonald’s – another purveyor of coffee products.

In Delco LLC v. Starbucks Corporation, Delco, the owner-operator of a shopping center in Rio Grande, New Jersey had rented space to Starbucks.  The Starbucks lease contained an exclusivity clause that essentially barred any other tenant at that shopping center from selling coffee, espresso and tea drinks.  However, an exception to this provision was allocated for “any tenant . . . occupying twenty thousand contiguous square feet or more . . . and operating under a single trade name.”  Starbucks’ coffee exclusive at the shopping center became an issue when Delco sought to bring in McDonald’s as a tenant, and Starbucks voiced an objection.  Though there was no question that McDonald’s sells coffee and tea at its fast food restaurants, Delco envisioned leasing 40,000 square feet of contiguous space to McDonald’s – more than twice the size needed to satisfy the exception to the exclusivity provision under the Starbucks lease.  Based upon the clear and unambiguous lease language, the Appellate Division summarily affirmed the trial court’s determination that Starbucks’ objection to the McDonald’s lease lacked any merit, and that Delco was also entitled to attorneys’ fees.

While the Starbucks decision did not establish new law, it is an invaluable reminder for commercial landlords and tenants to carefully negotiate all lease terms, including exclusivity provisions.  Particularly on the tenant side, if a party to a lease is concerned about being “the only game in town” – such as Starbucks being the only tenant selling coffee products at a shopping center – then that party must cautiously negotiate and craft the terms that are ultimately memorialized in the governing lease documents.