Recitation, as required by CPLR §2219 (a), of the papers considered in review of the Motion.PAPERS NUMBEREDRespondent’s Notice of Motion;Affirmation in Support; Affidavit; & Exhibits (“A”-”C”) 1,2,3,4Petitioner’s Affirmation in Opposition & Exhibit (“1″-”4″) 5,6Reply Affirmation; Affidavit & Exhibit (“A”) 7,8,9DECISION/ORDER Upon the foregoing cited papers, the Decision and Order on the Motion is as follows:BACKGROUNDThis nonpayment proceeding was commenced by Webster Avenue Holdings Corp (“Petitioner”) against Thelma Pough (“Respondent”) seeking $10,395.04 in outstanding rent and other charges. The claim represented all sums that came due and owing to the Petitioner after a stipulation of settlement was consummated by the parties on February 17, 2015 in a prior nonpayment proceeding under L&T Index No.: 37072/2014. Respondent here moves for partial summary judgment herein seeking to dismiss a portion of Petitioner’s claim for rent which pre-date the petition in excess of one year. Respondent’s relief is grounded upon the equitable defense of laches. For the reasons cited below, the Court GRANTS the requested relief as delineated by the terms of this Decision/Order.RECITATION OF THE PROCEDURAL HISTORYThe instant nonpayment proceeding was filed on September 21, 2017 by Petitioner Webster Avenue Holdings Corp. against Respondent Thelma Pough. The Petition in the instant proceeding plead that the subject premises is governed by the Rent Stabilization Law and sought a total of $10,395.04 in rent and other non-rent charges such as late fees and legal fees.On September 25, 2017, the Respondent submitted a pro-se answer raising the following two defenses to this proceeding:1. The Petitioner has harmed me by waiting too long to bring this case (latches) [sic]; and2. General denial. Public assistance owes this amount; forced to sign 2 redeemed [sic] leases under duress for verification letter.The Petition was first noticed to be heard by the court clerk on October 3, 2017. On the initial court date, Respondent appeared by counsel, BOOM! Health, and the matter was adjourned to November 17, 2017. The proceeding would thereafter be adjourned on five (5) separate occasions for varying reasons: for a determination arising out of an administrative proceeding before NYCHA; for trial; and lastly for motion practice (which was submitted after the proceeding was marked for trial).THE MOTIONRespondent avers in her motion that any arrears accrued prior to September of 2016 should be severed for a plenary action on the basis of laches. Respondent argues that all four elements of the equitable defense are met in this instance and warrant the requested relief. Namely, that Petitioner has a valid cause of action; that Petitioner unreasonably delayed in bringing this proceeding some thirty (30) months after a prior non-payment proceeding was settled; that in delaying, Petitioner did so to the determent of the Respondent by allowing the rent arrears to accrue; and that Petitioner failed to provide notice to the Respondent that it would be pursuing its claims for rent.In opposition, Petitioner rejects the notion that any portion of its claim may be barred by the doctrine of laches. Petitioner argues that Respondent should have been on notice of its claims for rent as monthly rent bills are provided. Petitioner further avers that any delay was due in part to a change in personnel staff at Petitioner’s office. As the Respondent is a Section 8 recipient, Petitioner was required to comply with the Williams Consent Decree and obtain permission from NYCHA prior to the commencement of the proceeding. The staff changes, it is averred, contributed to the delay in seeking compliance with the Williams Consent Decree and, in turn, delayed the commencement of the instant proceeding.DISCUSSIONI. 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. Citibank Corp., 100 N.Y.2d 72, 81 [2003]; see also Zuckerman 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]).II. Laches DefenseRespondent moves this court for summary judgment based upon the doctrine of laches. Respondent argues that a portion of the money sought in the Petition is from a time period that renders it stale: some charges date back to March of 2015.Courts may employ summary judgment on a laches defense wherein the moving party has successfully plead all of the requisite elements (1515 Macombs, LLC v. Jackson, 50 Misc 3d 795 [Civ Ct, Bronx County 2015, Vargas, J.]; 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 (Bldg. Mgt. Co. Inc. v. Bonifacio, 25 Misc 3d 1233[A][Civ Ct, New York County 2009, Lebovits, J.]). All four elements are necessary for the proper invocation of this equitable doctrine based upon fairness (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]).Applying the laches doctrine to the instant matter, Respondent is awarded partial summary judgment on her affirmative defense as there are no genuine issues of material fact. The parties agree that Respondent has not paid rent from March 2015 through September 2017 (the date of the Petition). Accordingly, the first element of laches is satisfied. The second element has also been satisfied as Petitioner delayed approximately thirty (30) months or two and a half (2 1/2) years in commencing this proceeding. The parties previously appeared in a nonpayment proceeding under L&T Index No.: 37072/2014. This proceeding was settled by the parties on February 17, 2015, and no other legal action was commenced by the Petitioner to collect past due rent until the instant proceeding. The third element, lack of notice, is satisfied by the fact that no rent was demanded prior to the demand that predicated the instant nonpayment proceeding (15 W. 24th St. Corp v. Stallman, 2001 NY Slip Op 40504 [U] [App Term, 1st Dept 2001] (A jurisdictional prerequisite to the bringing of a nonpayment petition is a demand for rent). Although Petitioner herein avers that Respondent received monthly rent bills, it has long been the law that an ordinary rent bill, delivered in the normal course of business, does not satisfy the requirements of a rent demand (RCPI Landmark v. Chasm Lake Management Services, LLC, 32 Misc 3d 405 [Civ Ct, New York County, 2011]). Lastly, the fourth element of prejudice has been satisfied as the Respondent is recipient of public assistance; has no income other than that which is provided by the Social Services agency; and lacks any significant resources to pay the rental arrears that have now accumulated.Where, as here, a tenant establishes all of the requisite elements of laches, the landlord must establish a reasonable excuse for the delay or be barred from recovering a possessory judgment for arrears found to be stale (1560-80 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]). Here, Petitioner’s counsel avers in her affirmation that Petitioner has a reasonable excuse. Namely, that turnover in office staff prevented Petitioner from complying with the Williams Consent Decree and, in turn, bringing this instant proceeding. Such excuse, however, is solely found in the affirmation of Petitioner’s counsel and is unsupported by the statements made in the affidavit of Petitioner’s managing member, Jac Zadrima. Petitioner’s counsel does not have personal knowledge of the essential facts and her bald, unsupported statements are insufficient to create a material issue of fact to defeat Respondent’s summary judgment motion.Therefore, based on the above, Petitioner’s claims for rent arrears and other charges totaling $6,385.30 from March 2015 through and including August 2016 are severed to a plenary action (Abart Holdings, LLC v. Hall, 2004 NY Slip Op 50823U, *1 [App Term 1st Dept]). Petitioner may pursue all claims for outstanding rent that has accrued from September of 2016 to date in the instant proceeding and seek a final judgment for the same.CONCLUSIONAccordingly, it is hereby:ORDERED, that Respondent’s Motion seeking partial summary judgment is GRANTED; and it is further;ORDERED, that Petitioner’s claim for rent in the amount of $6,385.30 that accrued from March 2015 through and including August 2016 is severed as stale and may be pursued in a plenary action; and it is furtherORDERED, that this matter is restored to the Court’s calendar in Part G, Room 590 on Friday, September 21, 2018 at 9:30a.m. for settlement or trial.This constitutes the Decision/Order of this Court.Dated: August 15, 2018
