RECITATION, AS REQUIRED BY CPLR SECTION 2219(A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION:. PAPERS NUMBERED NOTICE OF MOTION AND AFFIRMATION AND AFFIDAVIT AND EXHIBITS ANNEXED 1 ANSWERING AFFIRMATION AND AFFIDAVIT AND EXHIBITS ANNEXED 2 REPLYING AFFIRMATION 3 EXHIBITS DECISION/ORDER UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS: Petitioner commenced this nonpayment proceeding seeking monthly rent of $1271 from January 2016 through May 2018, for the subject apartment, C410, at 1625 Fulton Street, Brooklyn, NY 11213. The petition is dated May 2018. The apartment receives federal section 8 project based rental assistance. Respondent filed an answer interposing defenses and counterclaims including failure to comply with HUD regulations, the petition seeks rent in excess of the tenant’s section 8 portion, defective rent demand, and laches. There is also an affirmative defense and counter claim for breach of the warranty of habitability. Respondent moves by notice of motion for an order, pursuant to CPLR 3212, granting summary judgment on respondent’s laches defense. Respondent claims petitioner waited twenty nine months to sue on the arrears. Respondent states in her affidavit that she resides in the subject apartment with her adult son and minor daughter. Late in 2015 she submitted documentation regarding her income to management. She was not informed that her rent increased from $325 to $1,220/month. She states she did not receive letters or documentation showing the rent increase or how it was calculated. She states this increase does not accurately reflect her income at the time. Respondent states that several times she attempted to get her rent adjusted according to her income, and it was not corrected. She states that during this time, the building was changing management companies. She was informed that she would be contacted by someone from the incoming management company with the new rent amount. She states the new management company never contacted her. In early May 2018, she received the petition and notice of petition for this case wherein petitioner is suing for $34,491.00. Respondent states she sees agents of the landlord on a regular basis, and she was never provided with documentation regarding her monthly rent, or the amount of arrears. She states one of the times she inquired about the rent, she was informed it had increased. She disputed the increase, and was not provided with documentation. On another occasion, she attempted to make a rent payment. The manager stated he could not provide a receipt. She states she has not received an adjusted rent amount, and has not been told what her portion of the rent is. She lives on a fixed income, and she cannot pay the arrears that accrued over the past two and a half years. Petitioner submits an affidavit from its agent, Robyn Lucas-Cora, stating she is familiar with the facts of this tenancy. In response to respondent’s claim that the landlord never reached out to her regarding an interim recertification, or to notify her about arrears, the agent states that respondent did not reach out to the petitioner. Ms. Lucas-Cora states that respondent was notified of her rent for October 1, 2015, and attaches copies of the 2015 reminder notices, and HUD rent increase letter dated September 1, 2015. The September 1, 2015 letter to respondent notifying her about a rent increase is a typed letter but the date, “9/1/2015″ is handwritten in. The letter notifies respondent that her rent was adjusted to $1,326.00 beginning October 1, 2015. The agent fails to offer an explanation for the handwritten date at the top of the letter, nor does the agent state how or when the letter was delivered to respondent. Petitioner attaches the current recertification letter, dated January 4, 2019, with a type written date at the top of the letter. Respondent’s current monthly rent is $524.00. The agent states that every month rent statements are mailed to the tenants showing the outstanding balance. Petitioner argues that respondent was on notice of the arrears. In reply, respondent points out that petitioner attached HUD notices to respondent for recertification for 2015 and 2019, but fail to include notices regarding recertification for 2016, 2017 and 2018, the time period that is the basis for the instant laches motion. Respondent does not dispute receiving notice of the rent increase in 2015. Respondent’s laches motion is based on the delay by the landlord in commencing a nonpayment action and the delay in adjusting her rent to the correct amount. Summary judgment should only be granted where no triable issues of fact exist. Salino v. IPT Trucking, Inc., 203 AD2d 352 (1994); Andre v. Pomeroy, 35 NY2d 351 (1974). The moving party of a summary judgment motion must establish a cause of action or defense by admissible evidence sufficient for the court to direct judgment in his favor as a matter of law. Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 NY2d 1065 (1979). CPLR 3212(b) “…The granting of such a motion is the procedural equivalent of a trial. Falk v. Goodman, 7 NY2d 87…)” Mid-Hudson Nuclear Opponents, Inc., v. Consolidated Edison Company of New York, Inc., et al, 100 Misc 2d 158 at 162 (Sup Ct, Dutchess Co, 1979). “…Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers…” Winegrad v. New York University Medical Center, 64 NY2d 851 at 853, 1985. Only if the moving party meets that burden does the burden then shift to the party opposing the summary judgment motion to lay bare its proof to establish that any real and alleged matters are capable of being established at trial. Zuckerman v. City of New York, et. al., 49 NY2d 557 (1980). See also Hasbrouck v. City of Gloversville, 102 AD2d 905 (AD 3rd Dept. 1984) aff’d 63 NY2d 916 (1984) A laches defense may be adjudicated by a motion for summary judgment where no issue of fact exists. Laches is an affirmative defense. The initial burden of proof is on the tenant to demonstrate that all four of the following elements of laches are present: the petitioner has a valid claim; the petitioner has delayed asserting such claims without good cause; the respondent lacked notice that the petitioner would pursue such claim; and the respondent would be prejudiced if the claim was not barred. Skrodelis v. Norbergs, 272 AD2d 316 (2nd Dept, 2000), see also Dedvukaj v. Maldonado, 115 Misc 2d 211 (Civ. Ct, Bx. Cty). Only after the respondent has met his/her initial burden does the burden of proof shift to the landlord to demonstrate a reasonable excuse for a delay. The petitioner may also offer evidence that would tend to disprove the tenant has met all four elements of a laches defense. Dedvukaj, supra Under the laches doctrine, equitable relief is barred where a party unreasonably or inexcusably delays in undertaking to enforce rights, with resulting prejudice to the opposing party. Marriott v. Shaw, 151 Misc2d 938, 940 (Civ Ct, Kings Cty, 1991), Dante v. 310 Assoc, 121 AD2d 332, (1st Dept. 1986) 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.” Lemle 58th LLP, v. Ann Wolf, 20 Misc3d 1133[A], (Civ Ct, NY Cty 2008), 600 Hylan Assoc v. Polshak, 17 Misc3d 134[A], (AT, 2nd Dept, 2nd & 11th Jud Dists, 2007) Respondent has met the four elements for a laches defense, and the first is that failing to pay rent is a cause of action. The second element is that petitioner delayed in asserting its nonpayment claim, and delayed in notifying respondent regarding the HUD re-certification for 2016, 2017 and 2018. It is undisputed that petitioner failed to send HUD notices regarding recertification for these years. Petitioner’s rent history reveals that the last zero balance was in February 2014. Petitioner’s breakdown indicates that respondent’s subsidy was terminated in October 2015, and the rent charges are a base rent of $1,220.00 instead of the prior, subsidized rent amount of $325.00/month. Respondent states in her affidavit that she made efforts to reach out to management regarding her rent, and petitioner fails to dispute this claim. Petitioner admits that it failed to send HUD re-certification notices for 2016, 2017 and 2018. Petitioner fails to produce written notice to respondent in any form regarding recertifying for these years, or proof of any efforts to notify respondent regarding recertifying. Petitioner fails to produce proof that respondent was notified she lost the subsidy. Petitioner waited fifty two months from February 2014 until commencing this nonpayment proceeding in May 2018. Petitioner fails to offer any excuse or explanation for the delay in commencing the nonpayment case other than stating it uses “first in, first out” method of accounting. Petitioner offers no explanation for failing to send HUD recertification notices to respondent for three years causing her to lose her subsidy. There is no written notice to respondent that her subsidy was terminated other than this proceeding. The fourth element of laches is satisfied because respondent would suffer injury and prejudice if she is compelled to pay the rental arrears. Based on the foregoing, respondent’s motion for an order granting summary judgment on her laches defense is granted to the extent that any arrears prior to February 2018 are severed for a plenary action as stale rent. The proceeding is adjourned to July 30, 2019, 9:30 am, Part A for trial. This constitutes the decision and order of the court. Dated: June 4, 2019
