BACKGROUND This summary nonpayment proceeding was commenced by Petitioner against Wanda Yvonne Byerson(Respondent), based on the allegation that Respondent has failed to pay rent due for Apartment 5 at 2301 7th Avenue, New York, New York 10030 (Subject Premises).PROCEDURAL HISTORYPetitioner issued a “Notice to Pay Rent or Vacate” dated August 22, 2017, seeking $115,300.00 in rent arrears for May 2009 through August 2017, at monthly rents between $1000.00 and $1300.00. The petition was filed on September 12, 2017. Proof of service was filed on September 13, 2017.Respondent appeared pro se on September 14, 2017 and filed an answer asserting a general denial and breach of warranty of habitability. An initial court date was set for September 21, 2017.The proceeding was adjourned to October 19, 2017. On that date, Respondent failed to appear and the court (Avery, J) awarded Petitioner a final judgment with forthwith issuance of the warrant.On October 30, 2017, Respondent moved for an order vacating the default judgment. Respondent appeared by counsel, and the court (Avery, J) issued an order vacating the default and adjourning the proceeding to December 7, 2017.On December 7, 2017, Respondent moved for an order allowing her to interpose an amended answer, dismissing part of the arrears sued for as stale and related relief. The motion was granted by the court (Marin, J), pursuant to a decision and order dated March 7, 2018, which deemed the amended pleading served and filed and denied Respondent’s request for partial summary judgment as premature. The court set a trial date for April 24, 2018.The amended answer asserts six affirmative defenses including laches, and that the monthly rent sued for is incorrect. The answer also asserts two counterclaims one for an order to correct and another seeking damages based on an alleged breach of warranty of habitability.On December 18, 2018, Respondent moved for an order granting leave for disclosure. The motion was denied by the court (Nembhard, J) on December 26, 2018.On January 29, 2019, the proceeding was assigned to Part 118 for trial. After the denial on Respondent’s application for further adjournment by the Housing Court Part, the court held a bench trial and reserved decision.FINDINGS OF FACTRespondent stipulated that she is the shareholder of record and that the proprietary lease annexed to Petitioner’ notice to admit (Ex 4) governs the relationship between the parties. Petitioner is the owner of the Subject Building pursuant to a deed dated March 11, 1996 (Ex 2). Petitioner is a New York Corporation incorporated under Section 402 of the Business Corporation Law and Article XI of the Private Housing Finance Law (Ex 1).There is a valid multiple dwelling registration on file with HPD (Ex 3).Liz Thompson (LT) testified for Petitioner. LT has been the President of the Board since 2000. LT submitted Board resolutions increasing the maintenance on four occasions between 2009 and 2016 (Ex 5A-D).As of May 1, 2008, the maintenance was raised to $1000 per month (Ex 5A). In 2010 it went up to $1100 per month (Ex 5B). In 2013 it went up to $1200 per month (Ex 5C), and in 2016 it was raised to $1300.00 per month.LT credibly testified that notices regarding said increases were sent to Respondent by regular mail by the treasurer of the Board (Ex 7A-C). This was not disputed by Respondent at trial.Petitioner submitted a rent ledger in evidence (Ex 8). The ledger shows that Respondent made only two payments between May 1, 2009 and January 1, 2009. One payment was for $1305.00 in February 2018, and a second payment for $1300 in October 2018.LT testified however that there was an error in Ex 8 and that the total amount due should be $1300 less than the balance shown by the ledger.Respondent testified on her own behalf. Respondent became a shareholder in 1996. Respondent was on the Board from 1996 till about 2005 or 2006.In 2007, Respondent testified that her maintenance was approximately $530.00 per month.Respondent may have received notice of an increase to maintenance in 2008 Respondent does not recall.Respondent has radiation treatment daily and has breast cancer. Respondent is not working now and she is seeking to be classified as disabled. Currently Respondent has no income.DISCUSSIONAt the close of Petitioner’s case, Respondent made a motion to dismiss. Respondent argued that the notices regarding the increase in maintenance were not sent by certified mail as required by the proprietary lease, and that Petitioner’s agent only testified that the notices were sent by regular mail.Respondent does not deny receiving the notices. Respondent was only questioned about one notice and she testified that she did not know whether or not she received it.There is no defense raised in Respondent’s answer pertaining to how the notice pertaining to the maintenance increases were mailed, thus the court finds that any objection to the fact that the notices were mailed by regular mail rather than certified mail was waived by Respondent by her failure to raise same in her answer. Based on the foregoing, Respondent’s motion to dismiss at the close of Petitioner’s prima facie case is denied.Respondent presented no evidence on her counterclaims for breach of warranty or for an order to correct as such both counterclaims are dismissed with prejudice.Respondent presented no evidence on her claim of laches.Laches is an equitable doctrine based on fairness” (Continental Cas. Co. v. Employers Ins. Co. of Wausau, 60 AD3d 128, 137, 871 N.Y.S.2d 48 [2008]). For the doctrine to apply, there must be a showing of unexplained delay and prejudice (see Saratoga County Chamber of Commerce v. Pataki, 100 NY2d 801, 816, 766 N.Y.S.2d 654, 798 N.E.2d 1047 [2003]). Whether a party has suffered “injury, change of position, loss of evidence, or some other disadvantage resulting from the delay” (Matter of Linker, 23 AD3d 186, 189, 803 N.Y.S.2d 534 [2005], quoting Skrodelis v. Norbergs, 272 AD2d 316, 317, 707 N.Y.S.2d 197 [2000]) “depends on the facts of the case” (Continental Cas. Co. v. Employers Ins. Co. of Wausau, 60 AD3d at 137, 871 N.Y.S.2d 48). Mere delay without a showing of prejudice does not constitute laches (Premier Capital, LLC v. Best Traders, Inc., 88 AD3d 677, 930 N.Y.S.2d 249 [2011]; Dwyer v. Mazzola, 171 AD2d 726, 727, 567 N.Y.S.2d 281 [1991]). Karagiannis v. Nasar/Hyer, 35 Misc 3d 37, 39 (App. Term 2012).As Respondent did not address this issue at all in her testimony or presentation of the case, the affirmative defense is dismissed.Additionally, although Petitioner sues for rent going back beyond six years in the petition, Respondent who was represented by counsel and granted leave to amend her answer never asserted Statute of Limitations as a defense in this proceeding.The court finds that Respondent failed at trial to present any defenses to Petitioner’s claim.Based on the foregoing the court finds that Respondent failed to pay maintenance due for May 2009 through May 2010 at the rate of $1000 per month, totaling $13,000.00 in arrears for this period.From June 2010 through May 2013 there was 36 months due at a rate of $1100.00 per month, for arrears totaling $ 39,600.00.From June 2013 through May 2016 there were 36 months due at a rate of $1200 per month, for arrears totaling $43,200.00.From June 2016 through August 2017, the date of the rent demand, there were 15 months due at a rate of $1300.00 for arrears totaling $19,500.00.As Petitioner did not move to amend the petition to date at trial, no arrears are awarded for any moth beyond that sought in the rent demand.Thus total maintenance due for the period from May 2009 through August 2017 is $115,300.00. The court deducts from said sum the payments acknowledged as received by Petitioner of $1305 in February 2018, and $1300 in October 2018.Petitioner is awarded a final judgment of money and possession in the amount of $112,695.00, against Respondent for all rent due through August 2017. As to Richard Doe, the court awards a final judgment of possession.1 Issuance of the warrant is stayed five days for payment. The proceeding is dismissed as against John Doe.This constitutes the decision and order of this Court.2Dated: January 29, 2019
