DECISION/ORDERPark North Realty LLC, the petitioner in this proceeding (“Petitioner”), commenced this summary proceeding against Thiam Cheik, the respondent in this proceeding (“Respondent”), seeking a money judgment and possession of 217 West 111th Street, #6A, New York, New York (“the subject premises”) on the ground of nonpayment of rent. Respondent interposed an answer with a defense of laches. The Court held a trial of this matter on May 18, 2018 and adjourned the matter for post-trial submissions to June 5, 2018. Petitioner proved at trial that it is the proper party to commence this proceeding; that the parties have a landlord/tenant relationship with one another; that the subject premises is subject to the Rent Stabilization Law; that Petitioner has complied with the registration requirements of 9 N.Y.C.R.R. §2528.3 and MDL §325; that Respondent owed rent arrears prior to the commencement of this proceeding; and that Petitioner properly and timely demanded payment of rent pursuant to RPAPL §711(2) in April of 2016, prior to the commencement of this proceeding.Petitioner introduced into evidence a rent breakdown showing that Respondent was entitled to a credit of $90.00 as of December of 2013. Petitioner introduced into evidence a two-year lease commencing January 1, 2014 with a monthly rent of $1,232.84, a subsequent two-year lease commencing January 1, 2016 with a monthly rent of $1,257.50, and a lease commencing January 1, 2018 with a monthly rent of $1,282.65.Petitioner introduced into evidence a rent ledger for the subject premises (“the ledger”). The ledger shows that Respondent has paid the monthly rent, in full, from July of 2015 onward. The months that the ledger shows are not paid are December of 2013, January of 2014, March of 2014, April of 2014, June of 2015, and May of 2018, the month in which the Court held the trial. In addition to that, Respondent paid $0.16 more than the monthly rent for twenty months and $0.50 more than the monthly rent for sixteen months.Petitioner’s registered managing agent testified that the ledger belatedly credited six rent payments, including but not limited to September of 2015 and March of 2016, because Respondent, at his own expense, traced money orders for rent paid for those months. The managing agent testified on redirect examination that he contacted Respondent subsequent to a prior nonpayment proceeding in 2013 and did not receive a response.Respondent testified that he is not employed; that he has lived in the subject premises for twenty-five years; that he always pays his rent; that he did not know that Petitioner would sue him for nonpayment of rent; that he does not know how he would obtain the arrears Petitioner now seeks in this proceeding; that he traced money orders; and that he delivered the rent for May of 2018 to Petitioner even though the ledger does not yet credit it.A cause of action for nonpayment of rent sounds in contract. Solow v. Wellner, 86 N.Y.2d 582, 589-90 (1995), Rutland Rd. Assoc., L.P. v. Grier, 2017 N.Y. Misc. LEXIS 1025 (App. Term 2nd, 11th, and 13th Dists. 2017), Underhill Ave. Realty, LLC v. Ramos, 49 Misc.3d 155(A)(App. Term 2nd Dept. 2015), Fasal v. La Villa, 2 Misc.3d 137(A) (App. Term 1st Dept. 2004), Fucile v. LCR Dev., Ltd., 2011 N.Y. Slip Op. 32256(U)(Dist. Ct. Nassau Co.). Accordingly, in order to establish its prima facie case for a judgment, Petitioner bears the burden of proving, at trial, the existence of a contract between itself and Respondents to pay the rent demanded. 402 Nostrand Ave. Corp. v. Smith, 19 Misc.3d 44, 46 (App. Term 2nd Dept. 2008). As Petitioner did not introduce into evidence a lease covering December of 2013, Petitioner has not proven an element of its prima facie case for that portion of the arrears.With regard to the unpaid rent for the months of January of 2014, March of 2014, April of 2014, and June of 2015, as the monthly rent from January of 2014 through December of 2015 was $1,232.84, four months at that rate totals $4,931.36. The total of the overpayments the Court noted earlier was $11.20. Crediting that amount leaves a balance of $4,920.16, without yet addressing May of 2018.Respondent argues that Petitioner’s admitted failure to credit six prior rent payments discredits the entirety of the ledger. However, Petitioner established the foundation that the ledger is a business record and the ledger otherwise credited every single payment for which Respondent showed proof at trial. The Court notes that the means by which Respondent proves that a ledger does not credit a payment is to show proof of that payment. See International Motor Co. v. Palmer, 92 Misc. 214, 215-216 (App. Term 1st Dept. 1915).Respondent also asserts a defense of laches to a judgment for $4,920.16. The first month of this amount of arrears accrued in January of 2014 and that last month accrued in June of 2015. As noted above, Petitioner first served a demand for rent in April of 2016.In order to establish laches, a party must show: (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 relief is accorded the complainant. All four elements are necessary for the proper invocation of the doctrine. Meding v. Receptopharm. Inc., 84 A.D.3d 896, 897 (2nd Dept. 2011), Philippine Am. Lace Corp. v. 236 W. 40th St. Corp., 32 A.D.3d 782, 784 (1st Dept. 2006), Dwyer v. Mazzola, 171 A.D.2d 726 (2nd Dept. 1991), A & E Tiebout Realty v. Johnson, 23 Misc.3d 1112(A)(Civ. Ct. Bronx Co. 2009), aff’d, 26 Misc.3d 131(A)(App. Term 1st Dept. 2010).The eight-month delay in between the last month of nonpayment and Petitioner’s demand for rent can potentially establish actionable delay for laches purposes. See Westhab Inc. v. Friend, 31 Misc.3d 1224(A)(City Ct. Mount Vernon 2011)(finding that the general practice of the Second Department has been to disallow a possessory judgment based upon rent arrears older than six months), citing 28 Market Street Corp. v. Gallo, N.Y.L.J. January 20, 1998 at 11:2 (App. Term 2nd Dept.). Compare 101 Cooper St. LLC v. Beckwith, 37 Misc.3d 1231(A)(Civ. Ct. N.Y. Co. 2012)(dismissing a laches defense when a landlord delayed suing for rent arrears for three months). Laches is not a fixed time frame like a statute of limitations, and as an equitable doctrine, the length of actionable delay differs for every individual case.In this case, Petitioner belatedly conceded that Respondent made six rent payments that Petitioner did not initially credit. A landlord’s repeated failure to credit payments certainly does not do anything to impart to a tenant that a tenant owes arrears, particularly when the tenant is as convinced that the tenant paid all the rent as Respondent has been. These errors of Petitioner, together with the passage of eight months in between the last month of a missing rent payment are specific facts that demonstrate that Respondent has proven the first three elements of his laches defense.Tenants asserting a laches defense can demonstrate prejudice by their inability to pay accumulated arrears due to having a low income. See, e.g., A & E Tiebout Realty, supra, 23 Misc.3d at 1112(A) (tenant is elderly and indigent); Rota Holding Corp. No. 2 v. Shea, 21 Misc.3d 1127(A)(Civ. Ct. N.Y. Co. 2008) (a tenant’s only source of income is limited public assistance and disability payments); Lemle 58th LLP v. Wolf, 20 Misc.3d 1133(A)(Civ. Ct. N.Y. Co. 2008); Marriott v. Shaw, 151 Misc.2d 938, 941 (Civ. Ct. Kings Co, 1991), Dedvukaj v. Madonado, 115 Misc.2d 211, 214 (Civ. Ct. Bronx Co 1982). Respondent testified credibly that he is unemployed right now and does not have the rent arrears that Petitioner is seeking.Accordingly, the Court finds that Respondent has satisfied the elements of a laches defense. While the Court thus dismisses so much of Petitioner’s claim as seeks a possessory judgment, Petitioner is entitled to money judgment. 1560-80 Pelham Pkwy. Assocs. v. Errico, 177 Misc.2d 947, 948 (App. Term 1st Dept. 1998), Nunz Realty, LLC v. McBride, 40 Misc.3d 1229(A)(Civ. Ct. N.Y. Co. 2013). Accordingly, the Court dismisses so much of Petitioner’s cause of action as seeks a judgment of possession against Respondent. However, Petitioner is entitled to a money judgment against Respondent in the amount of $4,920.16, the figure adduced above, the totality of which accrued on or before eights months before service of the rent demand.With regard to the monthly rent for May of 2018, Petitioner did not formally move to amend the petition to include this most recent month. If the Court construes Petitioner’s introduction of the breakdown to be an application to amend the petition, the dismissal of Petitioner’s cause of action for possessory relief essentially means that petitioner would be seeking to bootstrap a cause of action for rent in May of 2018 onto a cause of action for rent that last accrued in June of 2015. Moreover, given that Respondent has paid the rent consistently from July of 2015 through April of 2018, and that Respondent testified that he already mailed the rent for May of 2018, the Court does not find good cause to amend the petition to include the monthly rent for May of 2018. The Court’s ruling herein is without prejudice to any remedy of Petitioner and any defense of Respondent concerning rent for May of 2018.The parties are directed to pick up their exhibits within thirty days or they will either be sent to the parties or destroyed at the Court’s discretion in compliance with DRP-185.This constitutes the decision and order of this Court.Dated: New York, New YorkJune 6, 2018
