TenantNet Forum

Where tenants can seek help and help others



Laches

Basic Reference Documents

Moderator: TenantNet

Laches

Postby TenantNet » Wed Apr 22, 2009 8:12 am

Here's a report and decision on Laches, the legal defense tenants may assert if a landlord waits too long before bringing a case in Housing Court. This is a Civil Court case, so it may be appealed.

One observer commented, "Apart from its nice holding on laches, this case holds -- I believe for the first time -- that otherwise unearmarked rent payments are implicitly directed to the current month’s rent when paid at the beginning of each month in the exact amt of the monthly rent. Judge Madhavan also held it would be inequitable to apply the payments to the earliest arrears, thus allowing the LL to obtain a possessory judgment for payments that were missed 2 years prior to the proceeding.


Landlord's Delay Prompts Court to Dismiss Eviction Proceeding
by Mark Fass
New York Law Journal
April 21, 2009

A Bronx judge has dismissed an eviction proceeding, holding that the landlord's 23-month delay in initiating the action constituted sufficient prejudice to support the tenant's laches defense.

Civil Court Judge Jaya K. Madhavan ruled that the landlord's application of the tenant's monthly checks toward her ongoing balance rather than toward her rent, and its concomitant contention that the arrears were therefore current and not "stale," constituted unjust bookkeeping.

"To permit petitioner to apply respondent's payments to her past arrears to support its possessory claim would cause respondent - who is elderly and indigent - to lose her home of over 30 years," Judge Madhavan wrote in A&E Tiebout Realty v. Johnson, 53356/08. "The court cannot countenance such a patently unjust result."

The Bronx Civil Court decision will be published Friday.

Landlord A&E Tiebout Realty initiated the present proceeding against tenant Lois Johnson in September 2008, seeking alleged arrears of $1,538 for Ms. Johnson's Tiebout Avenue apartment. A&E sought rent for the two previous months, along with unpaid washing machine and air conditioner fees.

The company also sought Ms. Johnson's eviction, based on the arrears.

Ms. Johnson, a 73-year-old Section 8 tenant, has lived in the Fordham Heights apartment since the 1970s. She failed to pay her share of the rent - $179.30 - five times between December 2006 and October 2007.

In her answer, Ms. Johnson moved for summary judgment on the grounds of laches - i.e., that the landlord's delay in initiating the action caused her significant injury and prejudice.

A&E denied any delay, arguing that although Ms. Johnson had submitted the exact amount of her monthly rent each month since October 2007, the company had applied each check to her arrears, not the current rent. Therefore, A&E contended, Ms. Johnson's arrears remained current, instead of "stale."

The general rule, the company noted, is that a debtor may direct how payments are to be applied, but if she fails to do so the creditor may apply the payments as it sees fit.

Judge Madhavan found several reasons that the rule did not apply in the present case.

The form of Ms. Johnson's payments - monthly, at the beginning of the month and for the amount of her rent - implied an intent for the funds to be used for her rent, not her arrears, the judge wrote.

Laches, which requires a "disadvantage resulting from the delay," also precluded the landlord's accounting, the court held.

"Petitioner's unreasonable delay in commencing this proceeding has left respondent unable to pay her alleged arrears for which she may be evicted from her home of over three decades," Judge Madhavan wrote. "Thus, this element of laches has been amply met as well."

Lucy Newman of the Bronx office of the Legal Aid Society represented Ms. Johnson.

"They tried to argue 'first in, first out,' but that would [only] make sense if [Ms. Johnson], say, missed those five months and only made two payments since," Ms. Newman said.

Isidore Whitfield Scipio of Gutman, Mintz, Baker & Sonnenfeldt, who represented A&E, could not be reached for comment.
TenantNet
 
Posts: 10311
Joined: Mon Jan 21, 2002 2:01 am
Location: New York City

A & E Tiebout Realty, LLC v Johnson

Postby TenantNet » Wed Apr 22, 2009 8:17 am

A & E Tiebout Realty, LLC v Johnson
2009 NY Slip Op 50715(U)
Decided on April 17, 2009

Civil Court Of The City Of New York, Bronx County
Madhavan, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on April 17, 2009

Civil Court of the City of New York, Bronx County

A & E Tiebout Realty, LLC, Petitioner,

against

Lois Johnson, Respondent.



L & T 53356/08

To:
Whitfield Scipio, Esq.
Gutman, Mintz, Baker & Sonnenfeldt, P.C.
813 Jericho Turnpike
New Hyde Park, NY 11040
Attorneys for Petitioner

Lucy Newman, Esq.
The Legal Aid Society
Bronx Neighborhood Office
953 Southern Boulevard
Bronx, NY 10459
Attorneys for Respondent

Jaya K. Madhavan, J.

In this summary nonpayment proceeding, petitioner seeks to recover from respondent, $1,538.88 in rental arrears alleged due through January 2009 for her occupancy of Apartment 5B at 2200 Tiebout Avenue in Bronx county ("Apartment"). Respondent, through counsel, moves to interpose an amended answer and seeks summary judgment on her affirmative defenses of laches. Respondent also seeks dismissal of all possessory claims for air conditioning, washing machine and miscellaneous charges. Respondent's motion is granted for the reasons set forth below.

Facts

The salient facts are undisputed. Respondent is 73 years old and has lived in the Apartment for over 30 years. Her sole source of income is Social Security benefits of $694.00 per month. Since 1995, respondent has also received a Section 8 subsidy administered by the New York State Division of Housing and Community Renewal (DHCR) and is currently responsible for paying $179.30 per month in rent. Respondent has never been sued in Housing Court for any reason before now.

On September 23, 2008, petitioner commenced this proceeding seeking rental arrears for the months of August 2008 and September 2008 along with washing machine fees, air conditioning fees and miscellaneous charges. (Petition, ¶ 6.) In truth however, petitioner's rent breakdown reveals that, as of September 2008, respondent's alleged arrears spanned the period of October 2006 through September 2008. (Pet. Exh. 3, amended and dated January 8, 2009.) That breakdown further shows that respondent did not pay her share of the rent for the months of December 2006 through February 2007 as well as September 2007 and October 2007. (Id.) However, since November 2007, respondent has paid her share of the rent in full each month. (Id.)

Additionally, petitioner's breakdown indicates that, starting in February 2007, petitioner began charging respondent $28.62 each month, allegedly representing air conditioning, washing machine and miscellaneous charges. (Id.) Respondent did not pay these sums and petitioner now seeks a possessory judgment for the same.

Analysis

As the parties consented to interposition of respondent's proposed amended answer nunc pro tunc, the court turns to the remaining branches of respondent's motion.

Summary judgment requires the proponent to make "a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact." (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]; CPLR § 3212[ b].) The burden then shifts to the opponent to "show facts sufficient to require a trial of any issue of fact." (CPLR § 3212[ b].) Should the opponent fail to produce proof in admissible form to raise triable issues of fact, the court must then grant summary judgment to the movant. (Alvarez, 68 NY2d at 324; Zuckerman v. City of New York, 49 NY2d 557, 598 [1980].) Although a drastic remedy, (Andre v. Pomeroy, 35 NY2d 361, 364 [1974]), the court may award summary judgment on any defense where the movant establishes entitlement to judgment as a matter of law. (CPLR § 3212[ b].) Thus, summary judgment may be awarded on a laches defense. (Vigilance v. Bascombe, NYLJ, May 25, 1989, at 30, col. 1 [App Term 2d & 11th Jud Dists]; Marriott v. Shaw, 151 Misc 2d 938, 940 [Civ Ct Kings Co 1991]; Rodriguez v. Torres, NYLJ, January 22, 2003, at 22, col. 1 [Civ Ct Kings Co]; 446 Ocean, LLC v. Marcel, NYLJ, January 9, 2002, at 22, col. 1 [Civ Ct Kings Co]; Harlem Restoration Project v. Alexander, NYLJ, July 5, 1995, at 27, col.2 [Civ Ct NY Co]; and Jerweb Realty Co. v. Smith, NYLJ, June 30, 1993, at 25, col. 5 [Civ Ct Kings Co].)

Laches is an equitable doctrine based upon fairness. (Continental Cas. Co. v. Employers Ins. Co. of Wausau, 60 AD3d 128, 2008 NY Slip Op 10227 * 7 [1st Dept 2008].) It bars the enforcement of a right where there has been an unreasonable and inexcusable delay that results in prejudice to an opposing party. (Saratoga County Chamber of Commerce v. Pataki, 100 NY2d 801, 816 [2003], cert den 540 US 1017 [2003]; Matter of Barabash, 31 NY2d 76, 81 [1972]; Dante v. 310 Associates, 121 AD2d 332, 333 [1st Dept 1986]; Skrodelis v. Norbergs, 272 AD2d 316, 316 [2d Dept 2000].) These core elements of unexplained delay and prejudice have been expanded to require a showing of:

(1) conduct by an offending party giving rise to the situation complained of; (2) delay by the complainant in asserting his or her claim for relief, despite the opportunity to do so; (3) lack of knowledge or notice on the part of the offending party that the complainant would assert his or her claim for relief; and (4) injury or prejudice to the offending party in the event that the relief is accorded to the complainant.

74A NYJur2d Limitations and Laches, § 364 [2009]

(See Cohen v. Krantz, 227 AD2d 581, 582 [2d Dept 1996], citation omitted; Dedvuakj v. Madonado, 115 Misc 2d 211, 214 [Civ Ct, Bronx Co 1982]; Marriott v. Shaw, 151 Misc 2d at 480. See also Reynolds v. Snow, 10 AD2d 101, 111 [1st Dept 1960].)

Where a tenant establishes the elements of laches, the landlord is barred from recovering a possessory judgment for any arrears found to be stale. (1560-90 Pelham Pkwy. Assoc. v. Errico, 177 Misc 2d 947, 948 [App Term 1st Dept 1998] citing City of New York v. Betancourt, 79 Misc 2d 907, 908 [App Term 1st Dept 1974].) Equitable considerations, rather than inflexible timeframes, guide the court in determining whether rent claims are stale. (Mordland Assoc. v. Coccaro, NYLJ, August 25, 1987, at 5, col. 6 [App Term 1st Dept]; CHLC Corp. v. Gottlieb, NYLJ, October 19, 1988, at 28, col. 4 [App Term 2d & 11th Jud Dists].) Those claims are then deemed an action at law upon which petitioner may seek the entry of a money judgment. (City of New York v. Betancourt, 79 Misc 2d at 907 - 908; Vigilance v. Bascombe.)

Respondent has met each of the elements of laches. First, the parties agree that respondent did not pay rent for the months of December 2006 through February 2007; September 2007; and October 2007, which precipitated this proceeding.

Second, petitioner has unreasonably delayed in asserting its claim for the arrears now sought. Petitioner's breakdown reveals two key facts: (1) respondent's alleged arrears accrued over 23 months prior to commencement of this proceeding; and (2) since November 2007, respondent has paid the exact amount of her tenant share of the rent to petitioner without fail. Petitioner offers no explanation for its protracted delay in commencing this summary proceeding. Nor does petitioner even allege the existence of any impediment to an earlier suit. Instead, petitioner argues that respondent's payments were applied to her ongoing balance and therefore, the arrears sought represent current and not stale rent.

Petitioner's argument is unavailing. The general rule is that a debtor may direct how payments are to be applied but, where he/she fails to do so, the creditor may apply the payments as he/she sees fit. (Snide v. Larrow, 62 NY2d 633, 634 [1984], citations omitted.) There is no particular manner in which the debtor must direct the application of his/her payment. "A direction as to how payment is to be applied may be evidenced by circumstances as well as by words. A payment may be attended by circumstances which demonstrate its application as completely as words could demonstrate it." (L & T East 22 Realty Co. v. Earle, 192 Misc 2d 75, 76 [App Term 2d & 11th Jud Dists 2002] quoting Tayloe v. Sandiford, 20 U.S. 13, 20 [1822].) Thus, the debtor's intention to apply a payment to a particular debt may be inferred from various factors, including whether the amount of the payment equals the amount of a specific debt. (New York & Brooklyn Brewing Co. v. Angelo, 144 AD 655, 657 [2d Dept 1911]; Smith v. Mould, 87 Misc 199 [Sup Ct Cattaragus Co 1914]. See also 82 NYJur2d Payment & Tender, § 66 [2009].) Respondent's payments were consistently made at the beginning of each month as her rent came due. Further, these payments were always in the exact amount of her share of the rent for those months. The timing and amount of respondent's payments therefore dictate that they were intended to be applied toward her ongoing rent, and not for past arrears.

Further, even if respondent's intentions regarding the application of her payments were unclear, petitioner would still not have an absolute right to direct application of those payments. The right of a creditor to apply payments is subject to the general limitation that the application must be equitable and not work an injustice to the debtor. (Belden v. State, 103 NY 1, 9 [1886]; 82 NYJur2d Payment and Tender § 61 [2009]. See also Carson v. Federal Reserve Bank of New York, 254 NY 218, 232 [1930, Cardozo, C.J.], holding that "an application [of payments], usually appropriate, may be varied by the court when variance is necessary to promote the ends of justice.") To permit petitioner to apply respondent's payments to her past arrears to support its possessory claim would cause respondent who is elderly and indigent to lose her home of over 30 years. The court cannot countenance such a patently unjust result.

As petitioner seeks respondent's past arrears on pain of her eviction, respondent has amply demonstrated sufficient prejudice to support a laches claim. Contrary to petitioner's unsupported notions, laches does not require a showing that a landlord intended to "setup [sic] the tenant for eviction." (Zadrima Aff. in Opp., ¶ 5.) Rather, laches requires demonstrating prejudice which may be done " by a showing of injury, change of position, loss of evidence, or some other disadvantage resulting from the delay.' " (In re Linker, 23 AD3d 186, 189 [1st Dept 2005], quoting Skrodelis v. Norbergs, 272 AD2d at 317.) Petitioner's unreasonable delay in commencing this proceeding has left respondent unable to pay her alleged arrears for which she may be evicted from her home of over three decades. Thus, this element of laches has been amply met as well.

Finally, respondent has proven that she lacked actual or constructive notice that petitioner would sue her for the arrears now sought. Respondent states that she has never been sued for these arrears previously. (Johnson Moving Aff., ¶ 10.) Respondent further avers that she has never received a rent statement that reflected rental arrears. (Id., ¶¶ 11 - 12.) To the contrary, respondent notes that her rent statements reflected a credit on her account for the months of December 2006 through February 2007 as well as in September and October 2007 the only months in which respondent did not pay her rent. (Id.) Significantly, petitioner concedes that respondent's rent statements "reflected a negative balance" but contends that this was a mistake. (Zadrima Aff. in Opp., ¶ 10.) Regardless of whether petitioner's rent statements were in error, they confirm that respondent had no reason to believe that she would be sued for the arrears now claimed due.

As there are no genuine issues of material fact, respondent is awarded partial summary judgment on her affirmative defense of laches. The court finds that the only months for which respondent may owe rental arrears are December 2006 through February 2007 as well September 2007 and October 2007. Petitioner's claims for arrears for these months are severed to a plenary action. (Abart Holdings, LLC v. Hall, 2004 NY Slip Op 50823U, *1 [App Term 1st Dept], order relegating landlord to plenary action for stale rental arrears upheld.) All remaining rent claims are dismissed with prejudice.

Finally, petitioner also seeks to recover a possessory judgment for air conditioning, washing machine and miscellaneous charges. These charges even if valid do not constitute rent in a rent stabilized tenancy. (Graham Realty Associates, LLC v. Peller, 2006 NY Slip Op 50352[U], *1 [App Term 2d & 11th Jud Dists]; Tiffany Related, L.P. v. Faust, 19 Misc 2d 528, 529 [App Term 2d & 11th Jud Dists 2002]; Conversion for Real Estate, LLC v. Granik, 2004 NY Slip Op 51387[ U], *5 [Civ Ct NY Co].) Thus, the court lacks jurisdiction to dispose of petitioner's non rent claims. (Graham Realty Associates, LLC v. Peller, citing Bedford Gardens Co. v. Silberstein, 269 AD2d 445, 445 [2d Dept 2000]. See also Lincoln Amsterdam House, Inc. v. Baxter, 249 AD2d 146, 146 [1st Dept 1998].) Respondent is therefore awarded summary judgment dismissing petitioner's claims for the foregoing fees without prejudice to seeking their recovery in a plenary action.

Conclusion

Accordingly, this proceeding is dismissed as outlined above. This constitutes the Decision/Order of the court, copies of which are being mailed to the parties' respective counsel today.

Dated:April 17, 2009
Bronx, NY
Hon. Jaya K. Madhavan

Clerk of the Court
TenantNet
 
Posts: 10311
Joined: Mon Jan 21, 2002 2:01 am
Location: New York City

Marriott v. Shaw

Postby TenantNet » Thu Apr 23, 2009 6:06 am

VALERIE MARRIOTT, Petitioner, v. SADIE SHAW, Respondent

L&T Index No. 70142/91

Civil Court of the City of New York, Kings County

151 Misc. 2d 938; 574 N.Y.S.2d 477; 1991 N.Y. Misc. LEXIS 523

July 30, 1991

CASE SUMMARY

PROCEDURAL POSTURE: Respondent tenant moved for summary judgment dismissing petitioner landlord's nonpayment eviction proceeding on the ground of laches.

OVERVIEW: The landlord commenced an action seeking rents arrears for 25 months. The tenant responded that the landlord refused to accept any rents and refused to make repairs. She raised laches as a defense. The court held that the tenant had offered evidence sufficient to warrant summary judgment in her favor based on her claim of stale rent. In particular, tenant had made a showing of laches in the collection of rent, in that nonpayment of rent supported a cause of action under New York law, there was protracted delay of more than three months in bringing the proceeding, lack of notice in that no rent was demanded and no prior proceeding for rent commenced, and prejudice had been satisfied by evidence that the tenant was poor and no longer had the resources to pay the large rental arrears. No evidence was offered in opposition to the tenant's prima facie showing of laches. Based on the tenant's proof of laches, the court concluded that the landlord could not maintain a possessory claim for rent which accrued more than three months before this proceeding was brought. This proceeding could therefore be maintained for possession only for rent dating back three months.

OUTCOME: The court restored the proceeding to the calendar and deemed the case to be an action at law for rents that accrued beyond the three months preceding the action.


LexisNexis® Headnotes

HN1 In order to obtain summary judgment, the movant must establish a cause of action or defense sufficiently, by proof in admissible form, to warrant the court as a matter of law in directing judgment. Once such proof has been offered, in order to defeat the summary judgment motion the opposing party must show facts sufficient to require a trial of any issue of fact.

HN2 The proof necessary to defeat a summary judgment motion must normally also be in admissible form. It is incumbent upon a defendant who opposes a motion for summary judgment to assemble, lay bare and reveal his proofs, in order to show that the matters set up in his answer are real and are capable of being established upon a trial.

HN3 Under the laches doctrine, equitable relief is barred where a party unreasonably or inexcusably delays in under-taking to enforce rights, with resulting prejudice to the opposing party.

HN4 While the two essential elements of laches are unexplained delay and prejudice, these elements have been more specifically articulated as follows: (1) conduct on the part of the defendant, or of one under whom he claims, giving rise to the situation of which complaint is made and for which the complainant seeks a remedy; (2) delay in asserting the complainant's rights, the complainant having had knowledge or notice of the defendant's conduct and having been afforded an opportunity to institute a suit; (3) lack of knowledge or notice on the part of the defendant that the complainant would assert the right on which he bases his suit; and (4) injury or prejudice to the defendant in the event that relief is accorded to the complainant or that the suit is not barred.

HN5 The tenant initially bears the burden of proving that the four conditions are satisfied. The burden then shifts to the landlord to show a reasonably excuse for the delay. If the landlord fails to meet this burden, the equitable defense of laches will bar the equitable remedy of possession in a summary proceeding as it relates to the stale rentals.

HN6 With a time test for staleness no longer available, the burden of establishing staleness has most frequently been met by establishment of the defense of laches.


COUNSEL: Kathleen Masters, Esq., Jocelyne Martinez, of Counsel, The Legal Aid Society, New York, New York, for Respondent.

Rappaport, Krimko & Hertz, Michael Rosenthal, of Counsel, Brooklyn, New York, for Petitioner.

JUDGES: Marcy Friedman, Judge.

OPINION BY: FRIEDMAN

OPINION

DECISION AND ORDER

Respondent moves for summary judgment dismissing this nonpayment eviction proceeding on the ground of laches. The motion is granted to the extent of permitting petitioner to maintain a possessory claim solely for the three months' rent which accrued prior to the commencement of this proceeding, and a money claim for all prior months.

The proceeding was commenced by petition and notice of petition, dated April 22, 1991. The petition claimed rent arrears of $ 8200.00 for the twenty-five months from April 1989 to April 1991, at the monthly rate of $ 328.00. Respondent served an answer, dated May 21, 1991, denying the allegations of the petition and raising several affirmative defenses and counterclaims including laches and breach of the warranty of habitability.

In support of the summary judgment motion, respondent submitted an affidavit, sworn to on May 24, 1991, in which she attested to the following facts: She has lived at the premises since 1981, is 71 years old, and is indigent, subsisting on a fixed income of social security and supplemental security income. Petitioner acquired the building in December of 1988. In July 1989, without giving any reason, petitioner told respondent "that she was not going to accept any rent from [her] anymore." Petitioner also repeatedly refused to repair serious conditions in respondent's apartment. Finally, it would now be impossible for respondent to satisfy a judgment for the many months rent sought.

Petitioner's opposition to the motion consisted solely of two affirmations of her attorney dated May 28 and June 7, 1991. In neither affirmation did petitioner's attorney purport to deny the facts set forth in respondent's affidavit. Rather, he took the position that a factual dispute was raised by unsworn statements made by petitioner at conferences held before the summary judgment motion was brought. Alternatively, he appeared to argue that a laches claim cannot be disposed of on a motion for summary judgment. This contention is incorrect.

In order to obtain summary judgment, the movant must establish a cause of action or defense sufficiently, by proof in admissible form, to warrant the court as a matter of law in directing judgment. Once such proof has been offered, in order to defeat the summary judgment motion the opposing party must "show facts sufficient to require a trial of any issue of fact." (CPLR 3212[ b]. Zuckerman v. City of New York, 49 NY2d 557 [1980]; Friends of Animals v. Associated Fur Mfrs., 46 NY2d 1065 [1979]; Freedman v. Chem. Constr. Corp., 43 NY2d 260 [1977]; Spearmon v. Times Square Stores Corp., 96 AD2d 552 [2d Dept 1983]). The proof necessary to defeat a summary judgment motion must normally also be in admissible form. "It is incumbent upon a defendant who opposes a motion for summary judgment to assemble, lay bare and reveal his proofs, in order to show that the matters set up in his answer are real and are capable of being established upon a trial." ( Spearmon v. Times Square Stores Corp., supra, p 553 [quoting Di Sabato v. Soffes, 9 AD2d 297, 301]). Thus, it has consistently been held that an affidavit by an attorney who does not have personal knowledge of the facts is insufficient, as it lacks probative value. ( Zuckerman v. City of New York, supra, p 563; Spearmon v. Times Square Stores Corp., supra, p 553; Wehringer v. Helmsley-Spear, 91 AD2d 585 [1st Dept 1982]). Significantly, a triable issue will not be found, even where an opposing affidavit based on personal knowledge is submitted, if the affidavit merely contains conclusory allegations. ( Freedman v. Chem. Constr. Corp., supra, p 264; Thailer v. LaRocca, NYLJ, July 2, 1991, p 25, col 2 [App Div 2d Dept]). In summary, if the opposing party fails to submit evidentiary facts to controvert the facts set forth in the movant's papers, the movant's facts may be deemed admitted. Summary judgment may then be granted, as no triable issue of fact exists. ( Kuehne & Nagel, Inc. v. F. W. Baiden, 36 NY2d 539 [1975]).

Contrary to petitioner's contention, summary judgment is not restricted to particular categories of issues. Rather, it is appropriate whenever there is not triable issue of fact. Thus, laches claims, like any other claims, have been determined on summary judgment motions. As held in Eastern Shopping Centers v. Trenholm Motels (33 AD2d 930, 932 [3d Dept 1970]), "while the determination of that is a reasonable time is usually a question of fact, . . . where there are not disputed facts, what is a reasonable time becomes a question of law and the case is a proper one for summary judgment." In the context of a summary nonpayment proceeding, this Department has specifically upheld disposition on a summary judgment motion of a laches claim based on stale rent. (Vigilance v. Bascombe, NYLJ, May 25, 1989, p 30, col 1 [App Term 2d Dept], affg NYLJ, July 27, 1988, p 21, col 5).

In the present case, respondent has offered evidence sufficient to warrant summary judgment in her favor based on her claim of stale rent. In particular, respondent has made a showing of laches in the collection of rent, which petitioner has failed to controvert.

Under the laches doctrine, equitable relief is barred where a party unreasonably or inexcusably delays in under-taking to enforce rights, with resulting prejudice to the opposing party. (Dante v. 310 Assoc., 121 AD2d 332 [1st Dept 1986]; 75 NY Jur 2d, Limitations and Laches, § 330 [1989]). While the two essential elements of laches are unexplained delay and prejudice, these elements have been more specifically articulated as follows:

(1) conduct on the part of the defendant, or of one under whom he claims, giving rise to the situation of which complaint is made and for which the complainant seeks a remedy; (2) delay in asserting the complainant's rights, the complainant having had knowledge or notice of the defendant's conduct and having been afforded an opportunity to institute a suit; (3) lack of knowledge or notice on the part of the defendant that the complainant would assert the right on which he bases his suit; and (4) injury or prejudice to the defendant in the event that relief is accorded to the complainant or that the suit is not barred.

(NY Jur 2d, Limitations and Laches, § 333 [1989]).

The above elements, developed outside the landlord-tenant context, have been cited approvingly in summary eviction proceedings. (Vigilance v. Bascombe, NYLJ, July 27, 1988, p 21, col 5, supra, affd NYLJ, May 25, 1989, p 30, col 1 (App Term 2d Dept]; Luan Wag Realty v. Somoza, NYLJ, Feb. 5, 1990, p 26, col 1 [Civ. Ct. NY County], revd on other grounds NYLJ, July 10, 1991, p 21, col 1 [App Term 1st Dept]; Dedvukaj v. Madonado, 115 Misc 2d 211 [Civ. Ct. Bronx County 1982]). The tenant initially bears the burden of proving that the four conditions are satisfied. The burden then shifts to the landlord to show a reasonably excuse for the delay. "If the landlord fails to meet this burden, the equitable defense of laches will bar the equitable remedy of possession in a summary proceeding as it relates to the stale rentals." ( Dedvukaj v. Madonado, supra, p 214). Here, the first condition is easily satisfied, as nonpayment of rent supports a cause of action under New York law. The second condition, protracted delay, has been held satisfied by a delay of more than three months in bringing the proceeding. ( Dedvukaj v. Madonado, supra, p 214). In this case, the second condition is met by the facts that petitioner waited for twenty-five months to bring the proceeding and that no impediment existed to an earlier lawsuit. The third condition of lack of notice is satisfied not only by the fact that no rent was demanded and no prior proceeding for rent commenced, but also by the fact, attested to by respondent without contradiction, that petitioner affirmatively told respondent that she would no longer collect respondent's rent. The fourth condition of prejudice has been held satisfied by evidence that the tenant is poor and no longer has the resources to pay the large rental arrears. (Vigilance v. Bascombe, supra; Dedvukaj v. Madonado, supra, p 215). These facts exist in the present case.

No evidence was offered in opposition to respondent's prima facie showing of laches. Petitioner's reliance on statements allegedly made by petitioner at a settlement conference is unavailing. First, as this court deals with a high volume of cases, and holds conferences in well over fifty cases each week, the court has no specific recollection of any conference in this proceeding. However, even if unsworn statements were made at a conference, they would be patently insufficient as a matter of law to defeat a summary judgment motion.

As a substantive matter, respondent satisfied her burden of showing that the elements of laches were met, thereby shifting the burden to petitioner to show an excuse for the delay. As a procedural matter, respondent produced sufficient proof on papers on her laches claim to shift the burden to petitioner to show that a triable issue of fact exists, entitling petitioner to a hearing. By failing to submit any evidence to controvert the facts set forth in respondent's papers, petitioner failed to meet both burdens. The court accordingly concludes that respondent has shown that rent claimed in this proceeding is stale under the laches doctrine, and that she is entitled to summary judgment dismissing petitioner's possessory claim over the stale rent.

The remaining issue, then, is how many months' rent may be sought in this proceeding. (See Vigilance v. Bascombe, supra). Based on respondent's proof of laches, the court concludes that petitioner may not maintain a possessory claim for rent which accrued more than three months before this proceeding was brought. Other proof in the record -- most important, the extremely protracted nature of the delay, and petitioner's long-standing neglect of repair problems in the apartment, both of which suggest petitioner's possible desire to have respondent evicted -- further support the three month limitation.

The court notes--and review of the case law should make clear--that this limitation does not reflect application of the "three-month rule" which has been rejected by the appellate courts. Under the discredited three-month rule, delay in the commencement of summary proceeding was itself the basis for a finding that a rent claim was "stale" and therefore could not result in possessory relief. The rule was developed in an early line of cases which followed Gramford Realty Corp. v. Valentin (71 Misc 2d 784 [Civ. Ct. NY County 1972]). In Gramford, the court found that the tenants had not factually established a defense of equitable estoppel based on a claim that their landlord's year-long delay in collecting the rent was calculated to cause their eviction. But the court held that the proceeding should be dismissed because the landlord had "forfeited" the right to summary relief by reason of "excessive delay." After Gramford, many courts followed a per se rule based on mere delay. In the often-cited case of Maxwell v. Simons (77 Misc 2d 184, 185 [Civ. Ct. Kings County 1973], the court held that a period of three months is sufficient for a landlord to sue to evict a tenant. The rationale given for this three-month rule was that greater delay is not only inconsistent with a need for summary relief but may reflect an intent on the part of the landlord to cause eviction by permitting large arrears to accrue. In another influential case, Antillean Holding Co. v. Lindley (76 Misc 2d 1044 [Civ. Ct. NY County 1973]), the three-month rule was again applied, though not as an "automatic" bar but rather as establishing a presumption of unreasonable delay, which shifted the burden to the landlord to show diligence in bringing the proceeding.

City of New York v. Betancourt (79 Misc 2d 907 [App Term 1st Dept 1974]) signalled a shift in the concept of stale rent. In Betancourt, without citing Gramford or Maxwell, the court implicitly rejected a rule based on mere delay, and engrafted a requirement of harm to the tenant on the stale rent doctrine. The court thus held that "where a landlord fails for a substantial period of time to avail himself of [the summary proceeding] remedy to the detriment of the tenant, he is no longer entitled to the summary relief as to the stale claim." ( City of New York v. Betancourt, supra, p 908 [emphasis supplied]). Although the court did not explicitly analyze the circumstances under which harm could be found, it noted that establishment of the equitable defense of laches would suffice.

Notwithstanding Betancourt, the brightline approach of Gramford and Maxwell survived, with some courts continuing to find rent stale based on passage of time, without an addition showing of harm. (E.g., New York City Housing Auth. v. Hatzigiannis, NYLJ, Dec. 16, 1974, p 18, col 6 [Civ. Ct. NY County]). Increasingly, however, the appellate courts held that a finding of staleness could not be based on delay alone. (See, e.g., Schwartz v. Abt, NYLJ, May 4, 1978, p 5, col 4 [App Term 1st Dept]; Trustees of C.I. Mtge. Group v. NYILR Ltd., NYLJ, Dec. 8, 1978, p 6, col 3 [App Term 1st Dept]; Mt. Nebo Baptist Church of NY v. Myers, NYLJ, Apr. 10, 1979, p 10, col 5 [App Term 1st Dept]).

This Department early on rejected the contention that excessive delay is sufficient to bar a landlord from maintaining a summary nonpayment proceeding. In Mathews v. Deloach (NYLJ, June 30, 1978, p 15, col 2), the Appellate Term permitted a landlord to obtain a possessory judgment for nearly three years' rent, after finding that "the delay in commencing the proceeding was justified". Ten years later, despite Mathews, the three-month rule was apparently still being applied. Thus, in C.H.L.C. Realty Corp. v. Gottlieb (NYLJ, Oct. 19, 1988, p 28, col 4), the Appellate Term more explicitly rejected use of a fixed time period as a test of staleness:

This court has disapproved of the establishment of a "3 month rule" for nonpayment proceedings so that any claim for rent for a period of more than three months would be considered "stale" as a matter of law [citations omitted]. Therefore, the court erred in limiting the recovery of the landlord to the three month period immediately prior to the trial since it is the burden of the trial since it is the burden of the tenant to establish that the demand for rent is stale.

With a time test for staleness no longer available, the burden of establishing staleness has most frequently been met by establishment of the defense of laches. (E.g., Vigilance v. Bascombe, NYLJ, May 25, 1989, p 30, col 1 affg NYLJ, July 27, 1988, p 21, col 5, supra; Luan Wag Realty v. Somoza, NYLJ, Feb. 5, 1990, p 26, col 1, revd on other grounds NYLJ, July 10, 1991, p 21, col 1, supra; McLaughlin v. Timms, NYLJ, Nov. 30, 1984, p 4, col 3 [App Term 1st Dept]; Dedvukaj v. Madonado, supra. See also Mordland Assoc. v. Coccaro, NYLJ, Aug. 25, 1987, p 6, col 5 [App Term 1st Dept]). [FN 1]


Footnotes

1 As some courts have now recognized (see 269 Assoc. v. Yerkes, 113 Misc 2d 450 [Civ. Ct. NY County 1982]; Dedvukaj v. Madonado, supra, p 215), there are at least two other doctrines under which staleness may be established. The first, equitable estoppel, requires a showing of intentional conduct designed to induce the opposing party to change its position prejudicially. The second, based on language but not the holding of Gramford Realty Co. v. Valentin (71 Misc 2d 784, supra), requires a showing of delay by the landlord calculated to cause the tenant's eviction by permitting arrears to mount beyond the tenant's ability to pay. (See 177 East 90th St. v. Devine, NYLJ, Mar. 30, 1982, p 6, col 1 [App Term 1st Dept]; 269 Assoc. v. Yerkes, supra, p 456). In the present case, only the defense of laches was raised.

End Footnotes

In the present case, similarly, respondent has proved laches in order to establish staleness. Only upon finding of laches does this court determine that the possessory claim should be limited to the three months' rent accrued prior to the commencement of this proceeding. The imposition of this three-month limitation, after staleness has been established, thus differs entirely from the discredited use of a three-month rule to determine in the first instance whether rent is too stale to be sought in a summary proceeding. Unlike the three-month rule, the three month limitation is grounded in the facts of the particular case.

In the present case, in addition to the facts showing laches, there were facts (supra at 7-8 ) which suggest that petitioner's delay in commencing the proceeding was intended to cause respondent's eviction. But, given the confusion which has attended the development of the stale rent doctrine, it is important to make clear that such facts merely provide additional support for the three month limitation. It is the finding of laches itself which determines the time limitation. This is so because a finding of laches is by its nature a finding that the rent sought in the petition is too stale to be the basis for a possessory claim. The number of months which are too stale is the precise issue required to be decided by the laches claim. This number, then, is determined not by facts which are extrinsic to the laches issue, but by the very facts which prove laches -- most important, facts showing the number of months as to which there is no excuses for delay, and the number of months as to which unexcused delay has caused prejudice.

There may be cases in which the showing of laches is such that not even one month's rent may be maintained in a summary proceeding (cf. Antillean Holding Co. v. Lindley, 76 Misc 2d 1044, 1047, supra). There may also be cases in which the laches does not affect all of the months sought in the petition; so that the possessory claim can be based on rent for a substantial number of months. (Mordland Assoc. v. Coccaro, supra). In the present case, a general showing of laches was made as to all of the months claimed in the petition, and petitioner did not counter this showing. However, as the popularity of the rejected three-month rule shows, and as respondent acknowledges in her memorandum of law, three months is normally considered a reasonable period of time for a landlord acting with "reasonable dispatch" to resort to a summary proceeding. ( Antillean Holding Co. v. Lindley, supra, p 1046). The three month period gives the landlord a fair opportunity to obtain expedited relief, while respecting the summary nature of the proceeding. This court therefore holds that in the absence of a specific showing to the contrary (as in the present case), the finding of laches should not cover the rent accrued in the three months before the proceeding is brought.

A three month limitation has been approved by this Department under similar circumstances. In Vigilance v. Bascombe, supra, the lower court imposed a three month limit after finding laches on the part of the petitioner. In upholding the determination, the Appellate Term noted:

While, as previously stated (see, e.g., C.H.L.C. Realty Corp. v. Gottlieb [citation omitted] this court had disapproved of the establishment of an absolute time limitation on the collection of rent in a summary proceeding [citation omitted], under the circumstances disclosed by the record herein, the court below did not err in holding that landlord may not get a judgment of possession for more than three months' rent and in relegating landlord to an action at law for the remainder.

This proceeding may therefore be maintained for possession, only for rent dating back to January, 1991. As to all prior rents, this case is deemed an action at law. (Vigilance v. Bascombe, supra; Moskowitz v. Simms, NYLJ, Apr. 28, 1975, p 18, col 1 [App Term 2d Dept]; 352 West 15th St. Assoc. v. Tietz, NYLJ, Sept. 21, 1989, p 22, col 3 [App Term 1st Dept]; City of New York v. Betancourt, 79 Misc 2d 907, supra). The proceeding is restored to the calendar of Part 18G of this Court on August 12, 1991 at 9:30 A.M.
TenantNet
 
Posts: 10311
Joined: Mon Jan 21, 2002 2:01 am
Location: New York City

Postby TenantNet » Fri Apr 24, 2009 9:34 am

For a PDF file of the Vigilance v. Bascombe decisions (two decisions, lower court and Appellate Term), go here.
The Tenant Network(tm) for Residential Tenants
Information from TenantNet is from experienced non-attorney tenant
activists and is not considered legal advice.

Subscribe to our Twitter Feed @TenantNet
TenantNet
 
Posts: 10311
Joined: Mon Jan 21, 2002 2:01 am
Location: New York City

Judge Lebovits on Laches

Postby TenantNet » Sat Jul 11, 2009 3:35 pm

http://www.nycourts.gov/reporter/3dseri ... _51713.htm

Lemle 58th LLP v Wolf
2008 NY Slip Op 51713(U) [20 Misc 3d 1133(A)]


Decided on August 11, 2008
Civil Court Of The City Of New York, New York County
Lebovits, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on August 11, 2008
Civil Court of the City of New York, New York County


Lemle 58th LLP, Petitioner,

against

Ann Wolf, Respondent.


065766/08

Thomas S. Fleishell & Associates, P.C., New York City (Brandy A. Smith of counsel), for petitioner.

MFY Legal Services Inc., New York City (Kenneth K. Lau of counsel), for respondent.

Gerald Lebovits, J.

Respondent moves to dismiss this nonpayment proceeding on statute-of-limitations grounds and for summary judgment on the basis of laches.

Petitioner alleges that respondent owes $6939.63 in rent from January 2000 through January 2008. Respondent is an elderly woman on a limited income. In 1998, she applied for and began receiving Senior Citizens Rent Increase Exemption (SCRIE) benefits. New York City's SCRIE program helps eligible seniors by paying for rent increases. SCRIE gives landlords a dollar-for-dollar property-tax-abatement credit to make up for the rent tenants are exempted from paying. The Department for the Aging (DFTA) authorizes these tax credits and transfers them electronically to the building owner's property-tax account at the Department of Finance. (NYC Dept of Aging, Section on Rent Assistance, SCRIE Made Easy, What Landlords Need to Know, How Does the SCRIE Program Work?, available at http://www.nyc.gov/html/dfta/html/scrie/scrie.shtml [accessed on Aug. 11, 2008].)

The SCRIE benefit that petitioner deducted from respondent's rent was $67.32 from January 2000 to May 2000 and $65.68 from June 2000 to December 2000. Petitioner received tax credits in accordance with respondent's SCRIE benefits. Respondent's SCRIE benefits ended on December 31, 1999. She did not reapply for SCRIE. Petitioner, however, continued to bill respondent the rent amount as if SCRIE were being credited even after her SCRIE benefits ended. Respondent paid her monthly rent according to the rent bill petitioner gave her. [*2]

In January 2008, petitioner told respondent that she owed $6380.80 in rent and arrears because she failed to re-certify her SCRIE benefits after December 31, 1999. In 2008, respondent received a letter from the DFTA stating that her SCRIE benefits were revoked effective January 1, 2000. DFTA enclosed a new SCRIE application and a notice that no retroactive benefits could be given to respondent.

Respondent argues that the statute of limitations has expired. If so, the arrears accrued before January 2002 may not be recovered. The court finds that the six-year statute of limitations partly bars petitioner's nonpayment claim. A six-year statute of limitations exists for contract obligations. (CPLR 213 [2]; Westminster Props. v Kass, 163 Misc 2d 773, 774 [App Term, 1st Dept 1995 per curiam].) The statute of limitations begins to run when a petition is filed. (Butler v Gibbons, 173 AD2d 352, 353 [1st Dept 1991 mem].) Here, the statute of limitations began on April 28, 2008, when petitioner filed the petition and began this proceeding. Any rent due from respondent before April 28, 2002, is barred by the six-year statute of limitations.

Respondent also moves for summary judgment. In a motion for summary judgment, the movant bears the burden of establishing a prima facie case that might entitle the movant to a judgment as a matter of law. (Zuckerman v City of NY, 49 NY2d 557, 562 [1980].) To defeat a summary-judgement motion, the nonmoving party must show issues of material fact exist that warrant a trial. (CPLR 3212 [b].)

Laches bar much of petitioner's nonpayment claim. The laches doctrine protects a tenant when the landlord "unreasonably or inexcusably delays in undertaking to enforce rights, with resulting prejudice to the opposing party." (Marriott v Shaw, 151 Misc 2d 938, 940 [Hous Part, Civ Ct, Kings County 1991], citing Dante v 310 Assocs., 121 AD2d 332, 334 [1st Dept 1986 mem].)

Four elements must be satisfied for laches to apply. (See e.g. R.M.H Estates v Hampshire, 13 Misc 3d 1222(A), 2006 NY Slip Op 51941[U], 2006 WL 2944655, 2006 NY Misc LEXIS 2904 [Hous Part, Civ Ct, NY County 2006], citing Dwyer v Mazzola, 171 A D 2d 726, 727 [2d Dept 1991, mem].) First, there must be a cause of action in which the court can grant a remedy. Second, the landlord must have had an opportunity to assert a claim earlier but delayed without explanation or reason. Third, the tenant must have been unaware that a suit is being initiated. Fourth, the tenant must show that injury or prejudice will result if laches does not bar the lawsuit. To establish laches, the tenant must satisfy the initial burden of proving the four elements. Then the burden shifts to the landlord to explain the delay.

Respondent has satisfied her burden. The first element of laches is met because not paying rent is a cause of action.

The second element is met because petitioner delayed in asserting its nonpayment claim. Documents petitioner offered in opposition to respondent's motion and the subpoenaed DFTA documents show that petitioner received tax credits from SCRIE after December 31, 1999. [*3]Petitioner was never required to reimburse the program. SCRIE simply informed petitioner that it had terminated her benefits. Because petitioner never received from SCRIE during 2000 through 2008, petitioner should have known it was receiving no credits and thus have commenced a proceeding against respondent earlier. Petitioner erred in its bookkeeping.

The third element of laches is satisfied because respondent did not know or have reason to know that petitioner would commence a proceeding when petitioner discovered its bookkeeping error. Although respondent did not re-certify her SCRIE benefits after 2000, she paid her monthly rent bills according to the petitioner's incorrect rent statements. Petitioner had reason to know that SCRIE benefits had terminated: Petitioner received tax credits from the SCRIE program. It was the petitioner's responsibility to make sure it received tax credits when it deducted SCRIE benefits from respondent's monthly rent.

The fourth element of laches is satisfied because respondent would suffer injury and prejudice if she is compelled to pay the rental arrears. Respondent has a limited income. She is not at fault for petitioner's bookkeeping error and would endure a burden if she were forced to pay the thousands of dollars that have accrued since April 2002.

The court must determine whether rent that accrued within the statute-of-limitation period is subject to possessory judgment or solely non-possessory judgment. Using its discretion and taking the equities into account, the court determines that petitioner can seek at trial a possessory judgment for rent arrears that accumulated from one year before the petition was filed, or rent owed from April 28, 2007, to date. Any additional rent petitioner alleges respondent owes within the statute-of-limitations period may be sought at trial but is subject to a non-possessory judgment. A trial will determine whether petitioner owes the arrears, but petitioner may not profit from its bookkeeping errors by obtaining an eviction for arrears other than those that have accrued since April 2007.

This proceeding is adjourned for trial to September 15, 2008.

This opinion is the court's decision and order.

Dated: August 11, 2008

J.H.C.
TenantNet
 
Posts: 10311
Joined: Mon Jan 21, 2002 2:01 am
Location: New York City


Return to Tenant Reference materials

Who is online

Users browsing this forum: No registered users and 17 guests