In this non-payment proceeding, petitioner AMML Realty Corp. (Petitioner) seeks to recover possession of 56 Sheridan Avenue, Apt. 3F, Mount Vernon, NY 10552 (Subject Premises) based on the allegation that Alethia Townsend (Respondent), failed to pay $18,805.86 in rent through August 2019 for the Subject Premises. Respondent appeared through counsel, and filed an amended verified answer disputing the amount of arrears owed, and asserting affirmative defenses and counterclaim based on breach of warranty of habitability and stale rent. A non-jury trial was held on August 6, 2019 and August 15, 2019. Mark Debenedictis, an officer of Petitioner, testified that Respondent, who has been a tenant for close to seven years, has consistently been behind in her rent. Respondent’s ledger, which was introduced into evidence, indicated that the last time the Respondent had a zero balance was May 2013. Mr. Debenedictis acknowledged that this is the first nonpayment action against the Respondent, stating that he has been trying to work with her in the hopes that she would eventually catch up on her rental arrears. While the Respondent’s ledger indicates that $18,805.86 is due in rent through August 2019, Mr. Debenedictis acknowledges receiving $2,000.00 from the Respondent in July 2019, which has been held in escrow and is not reflected on the Respondent’s ledger. As to the rental arrears, Respondent testified that her arrears should total only $11,028.83 in rent through August 2019, less the July 2019 $2,000.00 payment that has not been credited to her account. Respondent submitted into evidence receipts for several payments made in 2018 and 2019. The Respondent’s payment ledger reflects that those very payments were credited to her account, but applied to her rental arrears and not the month that they were paid. The law is clear that a tenant’s most recent rental payments may be applied to the oldest outstanding amounts due, absent an agreement or specification to the contrary (600 Hylan Assoc v. Hunter, 17 Misc 3d 134A (2nd Dept 2007)(citing Hughes v. Wagner, 4 AD2d 980 (1957); cf L & T E. 22 Realty Co. v. Earle, 192 Misc 2d 75 (App. Term, 2d & 11th Jud Dists 2002)). Respondent also claims Petitioner waited too long to commence this non payment proceeding, to her detriment. Although there is no period of time after which rent automatically becomes stale, the general practice of the Second Department has been to disallow a possessory judgment based upon rent arrearage which is over six months old (28 Market Street Corp. v. Gallo, NYLJ Jan. 20, 1998 p.11, col. 2 (App. Term 2d Dept); Levister Redevelopment Co., LLC v. Montgomery, 12 Misc 3d 1188A (City Ct. Mount Vernon 2006); Ludlow Street Development Corp. v. Petty, 24 HCR 13A NYLJ 1/3/96 p.30, col. 4 (City Ct Yonkers); 9-10 Alden Place v. Chen, NYLJ Sept. 8, 1998 p.21, col.1 (City Ct Mount Vernon)). A landlord’s protracted delay in commencing a summary proceeding may prejudice a tenant, in that as a result of the delay she does not have resources to pay the large amount of arrears accumulated (see Marriott v. Shaw, 151 Misc 2d 938 [Civil Ct. Kings Cty 1991]). It is well settled that where a landlord fails for a substantial period of time to avail himself of a summary proceeding to the detriment of the tenant, he is no longer entitled to summary relief as to the stale rent claims, but only entitled to possessory judgment for rent arrears for the six months within the commencement of the summary proceeding (City of New York v. Bentancourt, 79 Misc 2d 907 (1st Dept. 1974); 28 Market Street Corp. v. Gallo, supra. As to the stale rent, the proceeding will be deemed an action upon which a money judgment will issue, unenforceable by means of a warrant of eviction (Levister Redevelopment Co., LLC v. Montgomery, supra; 9-10 Alden Place v. Chen, supra)). In the case at bar, Respondent failed to establish that the arrears claimed by Petitioner were stale under the laches doctrine. In this nonpayment action, which was commenced in April of 2019, Petitioner is seeking only arrears six months preceding the commencement of this proceeding, which would be from October 2018 through August 2019. Respondent also seeks a reduction in the amount she owes in arrears on the grounds of dangerous and hazardous conditions inside of her apartment. Specifically she alleges that beginning in 2018 she began to complain to Petitioner about rodent infestation, bed bugs, mold, exposed wiring, holes in walls and a ceiling, and a gap between a kitchen counter top and a wall. Respondent presented into evidence dozens of photographs to support her claims regarding the unsafe conditions in her apartment. Respondent testified that any attempts made by the Petitioner to address the conditions in her apartment were inadequate, and as recently as July 2019, most of these conditions remain unresolved. In 2019, Respondent made similar complaints of a dangerous and hazardous condition in the Subject Premises to the Mount Vernon Buildings Department. Kim Knotts a Mount Vernon Buildings Inspector testified that after receiving Respondent’s latest complaint on June 21, 2019, she inspected the premises on June 29, 2019 and observed evidence of rodent infestation, poor workmanship to the repairs to ceilings, walls and floors. She also observed a mold like substance on bathroom walls, exposed wires in a closet, and cracks in the living room walls. Inspector Knotts did however state that while citing Petitioner for the aforementioned violations, she did not find them to be dangerous or hazardous. In his testimony pertaining to the conditions of the Subject Premises, Mr. Debenedictis countered that he would always attempt to fix or address concerns of Respondent. He further testified that an exterminator visits the building once a month, and repairs done in Respondent’s apartment were done correctly, and timely when his workers were given access. Petitioner, however, failed to provide any documentation regarding when and what repairs were done in the last year to address the conditions in the Subject Premises. RPL §235 — b requires a landlord to, among other things, maintain an apartment fit for human habitation and free of conditions which would be dangerous, hazardous, or detrimental to a tenant’s life, health or safety. This “implied warranty protects…against conditions that materially affect the health and safety of tenants or deficiencies that in the eyes of a reasonable person…deprive the tenant of those essential functions which a residence is expected to provide.” (Solow v. Wellner, 86 NY2d 582, 588 [1995], quoting Park West Mgt. v. Mitchell, 47 NY2d 316, 328 [1979].) Where a landlord has breached the warranty of habitability, the court may, among other things, award a tenant a rent abatement representing the diminution in value of the services she contracted for. (Park West Mgt. v. Mitchell, supra at 329.) In New York, the Court of Appeals recognized that the appropriate measure of damages for a breach of the warranty of habitability was not susceptible to a precise determination and that a case by case calculation would be warranted employing four factors: (1) severity of the conditions, (2) notice to the landlord, (3) duration of the condition of disrepair after notice to the landlord, and (4) the effectiveness of the efforts by the landlord to remedy the disrepair (Park West Mgt. Corp. v. Mitchell, supra at 326).After trial and due consideration of all admissible evidence, the Court finds and decides in fact and law, that the Petitioner has thus breached the statutory implied warranty of habitability guaranteed under Section 235-b of the Real Property Law. The Court further finds that as the result of the delay in correctly remedying the rodent infestation and mold condition complained of beginning in 2018 and currently still existing, the Respondent is entitled to an abatement of 20 percent of the rental arrears. Accordingly, the $18,805.86 due in rent through August 2019 is reduced 20 percent or $3,761.17. Respondent will be credited $2,000 that was presented to Petitioner last month that has not been negotiated. As such, final judgment of possession to Petitioner, final money judgment of $13,044.69, stay execution of the warrant to August 31, 2019. Dated: August 20, 2019 Mount Vernon, New York
