As already mentioned, in order to preserve plaintiff’s right to cure should he be in error regarding his joint living-working use of the premises, a Yellowstone injunction is required. (First Nat. Stores v Yellowstone Shopping Center, 21 NY2d 630.) This case is distinguishable from Childress v Lipkis (72 AD2d 724). There, the premises were used exclusively for living. Any “cure” was possible only by moving out. The question of propriety of that use could be tested adequately in the dispossess proceeding. By contrast, if plaintiff is wrong, he can cure without vacating the premises. He would simply discontinue his residential use and continue his photography studio. To protect that valuable opportunity, the injunction is necessary. (See Cearley v Haddad Corp., NYLJ, Feb. 16, 1983, p 11, col 3 [Gammerman, J.].)
No injunctive relief is proper in favor of defendant, however, to compel payment of use and occupancy pendente lite. This can only be accomplished as a condition to the grant of injunctive relief to plaintiff. (Corris v 129 Front Co., supra.)
WAIVER
The first cause of action advances the theory that defendant has waived any breach of the literal language of the lease restricting residential use of the premises. This waiver is alleged to arise not merely from a supine acquiescence or acceptance of rent in the knowledge that plaintiff was violating the lease. Plaintiff alleges a far more active waiver through defendant’s full knowledge and participation in the breach.