State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 21, 2016 521525 

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CATSKILL MOUNTAIN RAILROAD

COMPANY, INC.,

Respondent,

v MEMORANDUM AND ORDER

COUNTY OF ULSTER,

Appellant.

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Calendar Date: February 11, 2016

Before: Garry, J.P., Egan Jr., Lynch, Devine and Clark, JJ.

__________

Beatrice Havranek, County Attorney, Kingston, for

appellant.

The West Firm, PLLC, Albany (Mark J. Wagner Jr. of

counsel), for respondent.

__________

Lynch, J.

Appeal from an order of the Supreme Court (Mott, J.),

entered October 21, 2014 in Ulster County, which, among other

things, denied defendant's motion to renew its opposition to

plaintiff's application for a Yellowstone injunction.

Plaintiff leased a 38-mile railroad right-of-way from

defendant for a term beginning in May 1991 and extending through

May 2016. Pursuant to the lease, plaintiff was authorized to,

among other things, operate a tourist railway for passengers. In

June 2013, defendant issued a "Notice of Default Demand to Cure"

wherein it alleged that plaintiff failed to rehabilitate and

maintain the track, restore and repair defendant's damaged

property, obtain necessary permits and approvals, pay the
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requisite amount of rent based on gross revenue, provide certain

documentation, obtain appropriate insurance, and allow members of

the public to enter upon the property, all as agreed pursuant to 

the lease agreement. In July 2013, plaintiff commenced this

action seeking a temporary restraining order and a Yellowstone

injunction (see First Natl. Stores v Yellowstone Shopping Ctr.,

21 NY2d 630 [1968]). Defendant answered and imposed several

counterclaims. In November 2013, Supreme Court granted the

Yellowstone injunction and required plaintiff to post a surety

bond of $75,000. Thereafter, defendant served plaintiff with

discovery demands dated December 31, 2013 and plaintiff served

its responses approximately one month later. In August 2014,

defendant moved to renew its opposition to plaintiff's

application for a Yellowstone injunction and moved to compel

discovery. The court denied both motions and defendant now

appeals.

Where, as here, a landlord seeks the early termination of a

commercial lease based on allegations of default, Yellowstone

injunctions are routinely granted to maintain the status quo of

the tenancy while the underlying allegations are litigated (see

Graubard Mollen Horowitz Pomeranz & Shapiro v 600 Third Ave.

Assoc., 93 NY2d 508, 514-515 [1999]). The tenant seeking a

Yellowstone injunction must demonstrate, insofar as is relevant

here, that "it is prepared and maintains the ability to cure the

alleged default by any means short of vacating the premises" (id.

at 514 [internal quotation marks and citation omitted]; see TSI

W. 14, Inc. v Samson Assoc., LLC, 8 AD3d 51, 52-53 [2004];

Jemaltown of 125th St. v Leon Betesh/Park Seen Realty Assoc., 115

AD2d 381, 382 [1985]). Here, in opposition to plaintiff’s motion

for a Yellowstone injunction, defendant submitted evidence

demonstrating that the railway had significantly deteriorated

during plaintiff's tenancy and argued that given the condition of

the railway, plaintiff lacked the resources to cure its default

of its maintenance obligations. By its November 2013 decision

and order, Supreme Court determined that plaintiff sufficiently

demonstrated its ability to cure the alleged lease violations

through the use of skilled volunteers able to provide labor and

the accessibility of grant money. 
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A motion to renew must "be based upon new facts not offered

on the prior motion that would change the prior determination"

(CPLR 2221 [e] [2]; see Howard v Stanger, 122 AD3d 1121, 1122-

1123 [2014], lv dismissed 24 NY3d 1210 [2015]). It is not

intended as an opportunity to present evidence that, had the

party exercised due diligence, would have been offered on the

original motion (see Hyman v Schwartz, 127 AD3d 1281, 1285

[2015]; Onewest Bank, FSB v Slowek, 115 AD3d 1083, 1083 [2014]). 

Further, because it is an issue generally for the trial court's

"sound discretion" (Hyman v Schwartz, 127 AD3d at 1285), we

generally do not disturb a trial court's determination on a

motion to renew (see M & R Ginsburg, LLC v Orange Canyon Dev.

Co., LLC, 84 AD3d 1470, 1472 [2011]; First Union National Bank v

Williams, 45 AD3d 1029, 1030-1031 [2007]). Here, on its motion

to renew, defendant seeks to submit an affidavit by an expert who

inspected the railway, detailed the deficiencies and opined as to

the cost to restore the track to a condition that would comply

with the lease. Although defendant contends that as a

municipality, it was faced with certain statutory obligations

that hindered its ability to retain an expert, the record instead

demonstrates that the track conditions were well known and

documented and that defendant obtained a proposal from the expert

in April 2013. Still, defendant made the tactical decision to

forgo the formal inspection until May 2014. Accordingly, we

agree with Supreme Court's determination that defendant did not

demonstrate a reasonable justification for its failure to obtain

and provide an inspection report until almost one year after

plaintiff commenced this action (see Webber v Scarano-Osika, 94

AD3d 1304, 1306 [2012]; Abrams v Berelson, 94 AD3d 782, 784

[2012], lv dismissed 19 NY3d 949 [2012]).

Defendant also challenges Supreme Court's denial of its

motion to compel plaintiff to produce certain financial records. 

It is well settled that "'[t]rial courts have broad discretionary

power to control and supervise discovery and determine what

documents are 'material and necessary' under CPLR 3101 (a), with

appellate courts intervening only where there has been a clear

abuse of discretion'" (Deep v Boies, 121 AD3d 1316, 1322 [2014],

lv denied 25 NY3d 903 [2015], quoting Div-Com, Inc. v Tousignant,

116 AD3d 1118, 1119 [2014]). A disclosure request that is

"overly broad" or "lacking in specificity" is palpably improper
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(Matter of New York Cent. Mut. Fire Ins. Co. v Librizzi, 106 AD3d

921, 921 [2013]) or if it "seeks information of a confidential

and private nature that does not appear to be relevant to the

issues in the case" (Saratoga Harness Racing v Roemer, 274 AD2d

887, 889 [2000] [internal quotation marks and citations

omitted]). Generally, tax returns and private financial

documents are "not discoverable in the absence of a strong

showing that the information is indispensable to the claim and

cannot be obtained from other sources" (id.; see Div-Com, Inc. v

Tousignant, 116 AD3d at 1119). 

Here, defendant demanded, among other things, 10 years of

plaintiff's financial statements, all bank statements, receipts

for capital expenses and tax returns, all documents detailing its

assets and liabilities, and all receipts for all capital

expenses. Defendant argued that these records were necessary to

establish that plaintiff would not be able to cure the alleged

lease violations and that, because it did not properly compute

its gross revenue, it did not pay the appropriate rent. As set

forth above, however, a party seeking a Yellowstone injunction

does not need to demonstrate that it can, in fact, cure the

alleged defects (see Jemaltown of 125th St. v Leon Betesh/Park

Seen Realty Assoc., 115 AD2d at 382). Contrary to defendant's

argument, Supreme Court was not obligated to "prune" the

discovery requests for defendant as it was within its discretion

to vacate the overly broad and largely irrelevant demands (see

Payne v Enable Software, 229 AD2d 880, 882 [1996]). 

Garry, J.P., Egan Jr., Devine and Clark, JJ., concur.

ORDERED that the order is affirmed, with costs.

ENTER:

Robert D. Mayberger

Clerk of the Court