Cite as: 383 Realty Corp. v. Young, #89487/11, NYLJ 1202640083022, at *1 (Civ., NY, Decided January 14, 2014)


Judge Arlene H. Hahn

Decided: January 14, 2014


Petitioner's Attorney: Adam Leitman Bailey, P.C. Jeffrey R. Metz, Esq.

Respondent's Attorney: MFY Legal Services, Inc., Sandra Gresl, Esq. and Scott Stamper, Esq.





After trial, based on the testimonial and documentary evidence adduced therein, the Court finds and decides as follows:

In this summary nonpayment proceeding, petitioner seeks to recover from respondent $46,929.32 allegedly due through September 30, 2013 for occupancy of Apartment #8 at 339 East 22nd Street, in New York County ("Apartment"). Respondent has raised the defenses of laches and breach of Warranty of Habitability. Both parties are represented by counsel.

Pursuant to a pre-trial stipulation of settlement between the parties dated July 23, 2013, the parties stipulated to petitioner's prima facie case, agreed that for the time period in question, June, 2008 through July, 2013, the legal regulated rent for the apartment is $1,202.12 and the petition was amended to reflect alleged arrears of $73,329.32. Additionally, respondent has made payments commencing February 2013 through July 23, 2013 totaling $26,400.00 [including payments in the amount of $15,600.00 for the period November, 2011 through December, 2012, less one month previously paid, at a rate of $1200.00/month] made pursuant to an order dated December 3, 2012 (J. Stoller)], leaving an alleged arrears balance of $46,929.32 through July, 2013. At the end of trial, both parties acknowledged that all ongoing use and occupancy through September, 2013 was paid, with the September payment of $1,200.00 made on the record, leaving the alleged arrears balance remaining of $46,929.32.

At trial, the only issues to be determined were whether petitioner was precluded from obtaining a possessory judgment for any or all of the amount claimed under the doctrine of laches and whether respondent established its defense of breach of Warranty of Habitability.

The Court finds that under the facts presented, petitioner is barred by the doctrine of laches from obtaining a possessory judgment for rental arrears which accrued from June, 2008 through November, 2010, more than one year prior to the date of the petition. The doctrine of laches bars relief where a party unreasonably or inexcusably delays in enforcing its claims, causing prejudice to its adversary. Marriott v. Shaw, 151 Misc. 2d 938, 574 N.Y.s. 2d 477 [(Civ. Ct., 2nd Dept., 1991), citing Dante v. 310 Associates, 121




A.D.2d 332 (1st Dep't, 1986.)] The elements of laches in summary eviction proceedings are: (1) the tenant's actions or inaction giving rise to the cause of action; (2) the landlord's delaying asserting its claim for relief despite the opportunity to do so; (3) the tenant's having no knowledge or notice that the landlord would bring the proceeding; and (4) the tenant's being injured or prejudiced if the landlord prevails at the proceeding. Mariott, supra.

There is no dispute that respondent failed to pay her rent from June, 2008 until December, 2012, after the proceeding was commenced, satisfying the first element of laches. It is further undisputed that petitioner failed to commence this proceeding until November, 2011, 42 (forty-two) months after respondent's default. The Court in Mariott, supra, found laches where the landlord delayed only 25 months in bringing suit. Petitioner's agent, Ms. Weiner, testified that petitioner's delay in commencing a nonpayment proceeding against respondent was caused by her prior counsel, whom she instructed to commence a nonpayment proceeding against respondent and from whom she received updates about it. She described herself as generally experienced and knowledgeable about housing court cases and explained that she routinely received copies of documents pertaining to housing court cases from her attorneys. However, she produced no documentation to substantiate that, prior to the instant proceeding, anyone commenced a nonpayment proceeding against respondent on petitioner's behalf. Petitioner failed to produce any witnesses from prior counsel, either voluntarily or under subpoena, to explain its actions or corroborate Ms. Weiner's statements. Petitioner's delay in commencing the instant case is not vitiated by its prior counsel's action or inaction and if petitioner's prior counsel caused it to forfeit rent to which it is due, it has a remedy at law against those attorneys. Kim v. Witkoski, N.Y.L.J., p. 26 col. 3, July 29, 2009 (1st Dep't, 2009.) Petitioner asserts that it had a reasonable excuse for its delay because its retained counsel, with whom it had a twenty-year relationship, led petitioner to believe that the case had not only been commenced and completed, but that a warrant had issued against respondent. Further, a paralegal from the firm sent petitioner emails and a falsified bankruptcy petition, purportedly corroborating those representations. The fact remains that petitioner did not, in fact, commence a timely proceeding against respondent, and failed to practice due diligence in confirming that its attorneys did what they were hired to do: commence and complete a non-payment proceeding against respondent for rental arrears dating back to June, 2008. Therefore, the second element of laches is satisfied.

Petitioner's agent, Bunita Weiner, testified that she instructed the super to speak with respondent about her past due rent, but at no point did she give the super a copy of respondent's rent ledger. Petitioner's witness, superintendent, Sergio Moreno, testified that he did not know how much respondent's rent was, nor did he ever tell her a specific amount of rent that she owed. He further testified that it was not part of his job




description to tell tenants that they owe rent. Mr. Moreno did testify that he asked respondent "why don't you just pay the rent and get rid of these problems?" Petitioner asserts that such casual conversations with respondent should have put her on notice that petitioner would pursue its claims for her unpaid rent. The Court finds, however, that without either a more specific demand or having proven that they served respondent with a prior rent demand, respondent was not put on legal notice that petitioner would bring this proceeding, thus satisfying the third element of laches.

The fourth element of laches, prejudice, is satisfied where a tenant has limited income and lacks the resources to pay a large amount of arrears. P.T.V. Realty Corp. v. Mesa, N.Y.L.J., p. 31 col. 1, 3/1/2000 (Civ. Ct., 1st Dep't), Pristouris v. Berardi-Hans, N.Y.L.J., p. 29, col. 6, 6/7/1995 (Civ. Ct., 1st Dep't), Mariott, supra. Where delay in commencing a proceeding causes rent arrears to accumulate to the point where it would be impossible for the tenant to pay, allowing the landlord to recover is unquestionably prejudicial to the tenant. Rodriguez v. Torres, N.Y.L.J., p. 22, col. 1, 1/22/2003 (Civ. Ct, 2nd Dep't), A & E Tiebout Realty, LLC v. Johnson, 23 Misc.3d 1112(A), 885 N.Y.S.2d 710 (Civ. Ct., Bronx Cty., 2009.) Here, respondent lives on Supplemental Security Income ("SSI"), receiving only $797.00/month. Although she testified that she previously had a roommate who helped with the rent, he is not on the lease nor has he signed any other agreement to pay the rent. Additionally, the Court finds that respondent's testimony that she borrowed some money from her mother to assist with arrears does not constitute an ability by respondent to pay the substantial arrears which have accrued. Thus, the Court finds that respondent has established the defense of laches herein.

As to respondent's defense of Warranty of Habitability, based on the testimony and documentary evidence adduced at trial, the Court awards respondent a 15 percent abatement of rent for the period from December, 2012 through September, 2013, in the amount of $1,803.18.

Accordingly, of the $46,929.32 owed through September, 2013, the Court awards petitioner a non-possessory money judgment in the amount of $36,063.60 (rent for June, 2008 through November, 2010, thirty months, at a previously stipulated rate of $1,202.12/month, pursuant to the so-ordered stipulation between the parties of 7/23/13.) Additionally, the Court awards petitioner a final judgment of possession in the amount of $9,062.54 through September, 2013 [$46,929.32 minus $36,063.60 (non-possessory judgment) minus $1,803.18 (rent abatement)]. Issuance of the warrant is stayed five days, with execution stayed through March 31, 2014 for payment.

The foregoing constitutes the decision and order of this court.

Dated: January 14, 2013

New York, New York