Recitation, as required by CPLR §2219 [a], of the papers considered in the review of the respective motions.PAPERS NUMBEREDMotion Sequence # 1Respondent’s Notice of Motion; Affirmation in Support; Affidavit; and Exhibits (“A”-”E”) 1,2,3,4Motion Sequence # 2Respondent’s Notice of Appearance and Notice of Motion for Leave to Amend; Affirmation; Affidavit; and Exhibits (“A”-”F”) 5,6,7,8Motion Sequence # 3Respondent’s Notice of Motion; Affirmation in Support; and Exhibits (“A”-”D”) 9,10,11Affirmation in Opposition; Affidavit in Opposition; and Exhibits (“A”-”L”) 12,13,14Affirmation in Reply; Affidavit; And Exhibits (“A”-”E”) 15,16,17DECISION/ORDER Upon the foregoing cited papers, the Decision and Order is as follows: BACKGROUNDBronx Brooklyn HDFC (“Petitioner”) commenced the within summary proceeding against Nishae Simmons (“Respondent”) seeking a money judgment and possession of 951 Woodycrest Avenue, Apartment 3A, Bronx, New York 10452 (“the subject premises”) on the basis of nonpayment of rentPresently before this Court are a series of motions filed by Respondent’s counsel. The Court will address each form of relief in order of sequence. Respondent initially moved for partial summary judgment pursuant to CPLR §3212 on the ground that a portion of Petitioner’s claims are barred by the equitable doctrine of laches. The Respondent having failed to plead the defense of laches in her pro-se answer, Respondent’s counsel moved concurrently, albeit in a separate motion, for leave to amend the pro-se answer to include such defense. Finally, while the earlier two motions were pending, Respondent moved this court for leave to conduct discovery. These motions are consolidated for disposition herein.For the reasons cited below, Respondent’s motion for partial summary judgment is denied in its entirety. Respondent’s motion for leave to amend her answer is granted and her motion for leave to conduct discovery is granted.BRIEF FACTUAL AND PROCEDURAL BACKGROUNDThe Petition is dated April 26, 2017 and sought a total of $19,381.00 in outstanding rent and other charges. Respondent is a tenant in a project based Section 8 building federally subsidized by HUD. A portion of Petitioner’s claims represent market rate rent based on Respondent’s purported failure to timely recertify her income. Respondent filed a pro-se answer on May 8, 2017 asserting the following five defense to this proceeding:1) I or someone on my behalf tried to pay the rent, but the Petitioner refused to accept it. (Money was sent back due to missing lease);2) The rent, or a part of the rent, has already been paid to the Petitioner;3) General Denial;4) The petition seeks the HUD or Housing Authority Section 8 Part of the rent;5) Other counterclaim(s): Dipute claimed amounts/changes in management made a lot of mistakes // Sect 8 was closed due to 1 of those mistakes that say they didn’t recertify 2015 and were missing their lease (They in fact did recertify with Ms. Shaw) // working with Homebase [sic].The clerk of the court calendared the initial return date of this nonpayment proceeding for May 11, 2017 at 9:30am in Part I, Room 520. The proceeding was thereafter adjourned on two occasions for Respondent to obtain counsel and thereafter for motion practice which is the subject of this Decision and Order.DISCUSSIONRespondent’s Summary Judgment Motion (Sequence #1)Petitioner’s principal objection to Respondent’s summary judgment motion is that Respondent has moved for summary judgment upon a defense that has not been plead in the pro-se answer and well before the Court has granted Respondent leave to amend her answer to include the defense.The failure to plead an affirmative defense when required does not always preclude consideration of such defense in support or in defense of a motion for summary judgment. When a Respondent fails to plead an affirmative defense, but asserts said defense in connection with a motion for summary judgment, waiver is said to have been retracted and the court can grant or deny summary judgment based upon the never pled affirmative defense (Rogoff v. San Juan Racing Ass’n, Inc., 54 N.Y.2d 883 [1981]; BMX Worldwide, Ltd. v. Coppola N.Y.C., Inc., 287 A.D.2d 383 [1st Dept 2001]; Sheils v. County of Fulton, 14 AD3d 919 [3rd Dept 2005]; Kirilescu v. American Home Product Corp., 278 A.D.2d 457 [2nd Dept 2000]). The relevant inquiry is the prejudice or surprise associated with the assertion of a never pled affirmative defense (BMX Worldwide, LTD, supra at 384). Said prejudice or surprise is ameliorated when it is shown that the Petitioner has had a full and fair opportunity to respond and oppose the defense being asserted in connection with summary judgment (Sheils, supra at 921).Petitioner here has had a full and fair opportunity to oppose such defense in its opposition papers to Respondent’s summary judgment motion. The Court therefore considers the motion more fully herein.Standard for Summary JudgmentSummary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; Andre v. Pomeroy, 35 N.Y.2d 361, 364 [1974]). The party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law/tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact (Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]; CPLR 3212 [b]). The failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Smalls v. AJI Indus., Inc., 10 N.Y.3d 733, 735 [2008]). Once a prima facie showing has been made, however, “the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution” (Giuffrida v. Citibunk Corp., 100 N.Y.2d 72, 81 [2003]; see also Zuckorman v. City of New York, 49 N.Y.2d 557, 562 [1980]; CPLR 3212 [b]).When deciding a summary judgment motion, the Court’s role is solely to determine if any triable issues exist, not to determine the merits of any such issues (see Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 [1957]). The Court views the evidence in the light most favorable to the nonmoving party, and gives the nonmoving party the benefit of all reasonable inferences that can be drawn from the evidence (see Negri v. Stop & Shop, Inc., 65 N.Y.2d 625, 626 [1985]). If there is any doubt as to the existence of a triable issue, summary judgment should be denied (see Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223 231 [1978]).Laches DefenseSummary judgment may be awarded on a laches defense, which “is an equitable doctrine based on fairness” (Bldg. Mgt. Co. Inc. v. Bonifacio, 25 Misc 3d 1233[A][Civ Ct, New York County 2009, Lebovits, J.]). To establish laches, a party must show: (a) conduct by an offending party giving rise to the situation complained of; (b) delay by the complainant in asserting his or her claim for relief despite the opportunity to do so; (c) lack of knowledge or notice on the part of the offending party that the complainant would assert his or her claim for relief; and (d) 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 AD3d 896, 897 [2nd Dept. 2011]; Dwyer v. Mazzola, 171 AD2d 726 [2nd Dept. 1991]; A & E Tiebout Realty v. Johnson, 23 Misc 3d 1112A [Civ Ct, Bronx County 2009], affd 26 Misc 3d 131[A] [App Term 1st Dept 2010]).Presently there remains a dispute whether a portion of Petitioner’s claim for rent is valid arising out of the purported failure upon the Respondent to timely recertify her income in 2015. Respondent, by her own admission, states as much in her papers. Accordingly, it has not been shown that petitioner claims for rent are valid, Respondent’s laches defense is not viable at this time as matter of law in this summary judgment motion (Dedvukaj v. Madonado, 115 Misc. 2d 211 (Civ Ct, New York County 1982, Klein, J.). Respondent may properly renew her equitable defense of laches at trial should Petitioner successfully prove its claims upon direct.Respondent’s Motion for Leave to Amend Her Answer (Sequence #2)Section 3025(b) of the New York Civil Practice Law and Rules provides that“[a] party may amend his or her pleading…at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances.”Leave to amend should be freely given absent prejudice or surprise resulting directly from the delay in moving to amend. (See Fahey v. County of Ontario, 44 NY2d 934 [1978]; McCaskey, Davies & Assoc. v. New York City Health & Hosps. Corp., 91 AD2d 516 [1st Dept. 1982], mod. on other grounds, 59 NY2d 755 [1983]).Because petitioner has not shown how it would be prejudiced by granting this part of Respondent’s motion and, in fact, has not stated that it opposes such relief, the Court grants the motion to the extent of deeming the proposed “Verified Amended Answer” annexed to the motion papers (sequence # 2) as Exhibit “D” as having been duly served and filed.Respondent’s Motion for Discovery (Sequence #3)Respondent’s third motion seeks leave of court to conduct discovery in this nonpayment proceeding. A summary proceeding is, by its very nature, an expedited adjudication process where discovery is not available as a matter of right. Instead, discovery is allowed only by leave of court and upon a showing of ample need (New York University v. Farkas, 121 Misc 2d 643 [Civ Ct, NY County 1983]; CPLR §408).The court in Farkas set forth six factors to consider when determining whether ample need is established. The factors include (1) whether the petitioner has asserted facts to establish a cause of action; (2) whether there is a need to discover information directly related to the cause of action; (3) whether the information requested is carefully tailored and is likely to clarify the disputed facts; (4) whether prejudice will result from granting discovery; (5) whether the court can alleviate the prejudice; and (6) whether the court can structure discovery to protect pro se tenants against any adverse effects of a landlord’s discovery request.Although routinely granted in holdover proceedings based upon nonprimary residence and in owner’s use cases, discovery, while atypical, is not an unknown concept in nonpayment proceedings (See e.g., 30 W. 130th St. Corp. v. White, 45 Misc. 3d 896 [Civ. Ct, NY County 2014]; Pamela Equities Corp. v. Frey Co., 120 Misc 2d 281 [Civ Ct, NY County 1983]).Applying the factors set forth in Farkas, Respondent has made a showing of ample need. At issue here is Petitioner’s entitlement to charge a market rate rent based upon Respondent’s purported failure to timely complete her annual recertification in 2015. Before imposing such a penalty, Petitioner was required to provide the Respondent with a series of written recertification notices per the HUD Handbook informing the Respondent of his responsibility to provide information about changes in family income or composition necessary to properly complete an annual recertification. (United States Department of Housing and Urban Development Handbook 4350.3 REV-1, ch 7,7-7]; see also Starrett City, Inc. v. Brownlee, 22 Misc.3d 38 [App Term, 2d Dept 2008]; Lambert Houses Redevelopment Co. v. Huff, 35 Misc.3d 1215 [A] [Civ Ct, Bronx County 2012]). These notices include information on the recertification process (such as the recertification interview location and time), requirements (ie, the information/documentation required of the tenant), and timelines. (United States Department of Housing and Urban Development Handbook 4350.3 REV-1, ch 7,7-7 [B][1]-[B] [4]). Petitioner was required to maintain a copy of each notice in the tenant file documenting the date the notice was issued (id). The failure to comply with these notice requirements invalidates any termination or suspension of a Section 8 Subsidy for failure to recertify, and bars collection of market rent from a tenant in a project-based subsidized apartment (1199 Housing Corporation v. McCartney, NYLJ, Jan. 28, 1997 at 25, col 3 [App Term, 1st Dept 1997]; Westbeth Corp. HDFC Inc. v. Ramscale Prod., Inc., 37 Misc. 3d 13, 15 [AT 1st 2012].Petitioner would have been permitted to charge the Respondent market rent on condition that (a) all recertification reminder notices were timely provided and (b) Respondent reported for the recertification interview on or after the recertification anniversary date or failed to timely provide the requested documentation (United States Department of Housing and Urban Development Handbook 4350.3 REV-1, ch 7,7-7 [D][3]).Accordingly, as Petitioner is required by the HUD regulations to maintain a copy of each of the notice sent during the recertification process, the Respondent’s motion seeking leave to conduct discovery is granted. The sought after discovery is limited in scope; narrowly tailored; and specifically geared to clarify the disputed facts over Petitioner’s ability to charge market rent. Petitioner is therefore directed to respond to the interrogatories and demands within thirty (30) days of the date of this Decision/Order.CONCLUSIONAccordingly, based on the stated reasons above, it is herebyORDERED, that Respondent’s motion for partial summary judgment pursuant to CPLR §3212 is DENIED in its entirety; and it is furtherORDERED, that Respondent’s motion for leave to amend her answer is GRANTED; and it is furtherORDERED, that Respondent’s Amended Answer annexed as Exhibit “D” under motion sequence #2 is deemed duly served and filed; and it is furtherORDERED, that Respondent’s motion for leave to conduct discovery is granted; and it is furtherORDERED, that Petitioner shall respond to Respondent’s interrogatories and discovery demands within thirty (30) days of the date of this Decision/Order; and it is furtherORDERED, that this matter is restored to the Court calendar on August 1, 2018 @ 9:30a.m. in Part I, Room 520. The matter is marked for settlement or trial.This constitutes the Decision and Order of this Court.Dated: Bronx, New YorkJune 30, 2018
