Supreme Court, Appellate Division, 
Second Department, New York.

William F. BERGHOLD, etc., et al., Respondents,
v.
Samuel KIRSCHENBAUM, etc., et al., Appellants.


March 16, 1998.

 Kirschenbaum & Kirschenbaum, P.C., Garden City (Samuel Kirschenbaum, appellant 
pro se, of counsel), for appellants.

 Pieper Hoban & Royce, P.C., Mineola (Stephen P. Hoban, of counsel), for 
respondents.


 *498 In an action, inter alia, for a judgment declaring that the plaintiffs are 
in compliance with the terms of a lease, the defendants appeal from an order of 
the Supreme Court, Nassau County (Burke, J.), dated January 7, 1997, which 
granted the plaintiffs' motion to preliminarily enjoin them from terminating the 
lease on the condition that the plaintiffs post an undertaking in the sum of 
$125,000.

 ORDERED that the order is affirmed, with costs.

 The plaintiffs have demonstrated the elements necessary to establish their 
entitlement to a preliminary injunction prohibiting the defendants from seeking 
to terminate their lease pending a determination of the underlying dispute (see, 
**888First Natl. Stores v. Yellowstone Shopping Ctr., 21 N.Y.2d 630,  290 
N.Y.S.2d 721, 237 N.E.2d 868;  Long Is. Gynecological Servs. v. 1103 Stewart 
Ave. Assocs. Ltd. Partnership, 224 A.D.2d 591, 638 N.Y.S.2d 959; Matter of 
Langfur, 198 A.D.2d 355, 603 N.Y.S.2d 576).   Furthermore, a commercial tenant 
is not required to admit that it is in default in order to seek a Yellowstone 
injunction so long as it stands ready to cure any defaults in the event that it 
is "determined that the tenant's evaluation" of the circumstances was "improper" 
(Finley v. Park Ten Assoc., 83 A.D.2d 537, 538, 441 N.Y.S.2d 475).

 The defendants have failed to substantiate their contention that the trust, to 
which the lease was assigned in 1965, is no longer in existence or not "the real 
party in interest" (see, Brignoli v. Balch, Hardy & Scheinman, 178 A.D.2d 290, 
577 N.Y.S.2d 375).   Their conclusory allegations concerning the existence of 
the trust clearly fail in the face of the evidence presented by the *499 
plaintiffs that the trust is viable and has not been dissolved.


 THOMPSON, J.P., and PIZZUTO, JOY and ALTMAN, JJ., concur.

669 N.Y.S.2d 887 (Mem), 248 A.D.2d 498, 1998 N.Y. Slip Op. 02516

END OF DOCUMENT