Opinion
Index No. LT 318223/23
09-09-2024
Renaissance Equity Holding LLC, Petitioner, v. James Riley, BEVERLY HORTON, JOHN DOE, JANE DOE, Respondent.
Horing Welikson Rosen Digrugilliers PC, Attorneys for Petitioner By: Linda Skoller-Burton. The Legal Aid Society Brooklyn Office for the Aging Attorneys for Respondent By: Debbora Tabor Gerressu.
Unpublished Opinion
Horing Welikson Rosen Digrugilliers PC, Attorneys for Petitioner By: Linda Skoller-Burton.
The Legal Aid Society Brooklyn Office for the Aging Attorneys for Respondent By: Debbora Tabor Gerressu.
Hon. Tashanna B. Golden, Judge, Housing Court.
Recitation, as required by CPLR 2219(a), of the papers considered in review of Respondent's motion for summary judgment:
Papers: Numbers
Respondent's Motion, Affirmation in Support, and Exhibits NYSCEF # 8-14
Petitioner's Opposition and Exhibits NYSCEF # 16-24
Respondent's Reply NYSCEF # 26
Court File Passim
Upon the foregoing cited papers, the Decision and Order on these motions are as follows:
Petitioner filed this instant Nonpayment proceeding on or about June 13, 2023, seeking a final judgment of possession of the premises located at 3305 Foster Avenue, Apt. 2B, Brooklyn, NY 11210 (the "subject premises") from Respondents, along with a money judgment in the amount of $41,176.75 for arrears allegedly owed through June 2023. Petitioner predicated its Nonpayment proceeding upon the alleged service of a "Thirty Day Demand Notice." On August 3, 2023, Respondent "Jane Doe" file a pro se Answer and the matter was calendared for November 27, 2023. On January 11, 2024, the matter was adjourned to February 21, 2024, and then again to March 5, 2024. On or around March 5, 2024, Respondent Beverly Horton ("Respondent") obtained counsel and the matter was adjourned to April 2, 2024, and then April 17, 2024. On April 16, 2024, Respondent filed the instant motion to Amend the pro se Answer, and grant summary judgment. Petitioner filed opposition. Respondent filed a reply.
See NYSCEF Document # 1
Id.
See NYSCEF Document # 5
See NYSCEF Documents # 6-7
See NYSCEF Document # 8-14
See NYSCEF Documents # 16-24
See NYSCEF Document # 26
Proposed Answer
Respondent seeks to amend the answer pursuant to CPLR § 3025(b). The Court notes that the Respondent's motion is to amend the answer filed on this matter, however, the pro se Answer that was filed on this matter was filed by a "Jane Doe" and not the Respondent. Therefore, the proper motion here is one pursuant to CPLR § 3012 which would provide the Respondent leave to file an Answer. The Court retains the discretion to sua sponte amend the pleadings to conform to the proof in the absence of prejudice to the party who would oppose the amendment. Murray v. New York, 43 N.Y.2d 400, 405 (1977), Matter of Jada W. (Ketanya B.), 104 A.D.3d 861 (2d Dept 2013), leave to appeal denied, 21 N.Y.3d 862 (2013), Groves v. State Univ. of NY, 265 A.D.2d 141, 145 (3rd Dept 2000), N450JE LLC v Priority 1 Aviation Inc., 102 A.D.3d 631 (1st Dept 2013) (citing Patrick M. Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3025:17). The Court will analyze whether or not there is prejudice to the Petitioner in the Court amending the pleading to reflect a motion to file a late answer. The Petitioner in its opposition to the herein motion begins its legal analysis with an argument as to why the herein motion should not be granted under CPLR § 3012. Therefore, there is no prejudice in the Court amending the pleading to reflect a motion pursuant to CPLR § 3012 since Petitioner has already opposed that motion in its papers.
See NYSCEF Document # 5
Pursuant to CPLR § 2004, the court may extend the time fixed by any statute upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed. CPLR § 3012(d) grants the court discretion to extend the time to appear or plead, or compel the acceptance of an untimely pleading, upon such terms as may be just, provided there is a showing of reasonable excuse for the delay. "In determining whether a party should be granted leave to file a late answer, several factors are considered by the court, including the length of the delay, the excuse offered for the delay, the absence of willfulness, the possibility of prejudice, the potential merits of the defenses, and the public policy favoring the resolution of disputes on their merits" See NYSANDY3 NBP11 LLC v. Thompson, 72 Misc.3d 1210 (A), 149 N.Y.S.3d 883 (NY Civ Ct. 2021), citing, ArtCorp Inc v Citirich Realty Corp, 140 A.D.3d 417, 30 N.Y.S.3d 872 (1st Dept 2016); Emigrant Bank v Rosabianca, 156 A.D.3d 468, 67 N.Y.S.3d 175 (1st Dept 2017).
Considering the factors above, the Court will first look at the delay and determine whether it was willful and excusable. Here, this nonpayment proceeding was filed in June 2023. The pro se Answer was filed in August 2023 calendaring the matter for late November 2023. The matter was adjourned a few times for Respondent to retain counsel. Counsel was retained on or about March 2023. The Court notes that counsel works for the Department for the Aging in the Legal Aid Society which predominantly works with the vulnerable population of senior citizens. A month after retaining counsel the herein motion was filed. Respondent's affidavit in support of her motion states that she is a senior citizen who suffers from memory loss and that her adult daughter has moved in with her to assist with her daily affairs. Respondent's daughter filed the pro se Answer in August 2023. The Court assumes that the daughter filed the Answer because of the Respondent's disability and inability to actively participate in the proceeding. Therefore, the Court finds that Respondent's delay in filing an Answer here was not willful and is excusable.
See NYSCEF Document # 1
See NYSCEF Document # 5
See NYSCEF Document # 7
Id.
See NYSCEF Documents # 8-14
See NYSCEF Document # 10
See NYSCEF Document # 9 ¶ 6
Next, the Court will look to the potential merits of the defenses. The Respondent seeks to file an answer alleging laches and warranty of habitability as defenses. Both laches and warranty of habitability are meritorious defenses to a summary proceeding based on nonpayment of rent. As such, the proposed Answer has merit.
Lastly, the Court will look to whether or not there is prejudice against the Petitioner in allowing the filing of a late Answer. The pro se Answer filed in this matter alleges a warranty of habitability defense. Therefore, there is no surprise or prejudice to the Petitioner in allowing the Respondent to allege the same defense in her Answer. The only other defense that Respondent seeks to raise in her Answer is a laches defense. This defense is not prejudicial to the Petitioner since it is aware that it requested over three years' worth of rent arrears in its Petition. Additionally, the herein motion alleging the laches defense was filed in April 2024 and the Petitioner was afforded the time to file an opposition to the alleged defense.
See NYSCEF Document # 5 ¶ 10
See NYSCEF Document # 16-24
Therefore, considering the public policy favoring resolving matters on their merits and for all the reasons listed above, the Court amends the Respondent's motion and grants it. The proposed Answer is deemed served and filed.
Partial Summary Judgment
CPLR § 3212(b) provides that a motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." The moving party has the initial burden of establishing a prima facie showing that it is entitled to summary judgment as a matter of law and that no material issues of triable fact exist Friends of Animals, Inc. v Associated Fur Mfrs., 46 N.Y.2d 1065, 1067-1068 (1979). Once this burden has been met, the burden shifts to the party opposing the motion to "produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or [to] demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient," Zuckerman v City of New York, 49 N.Y.2d 557, 562 (1980). The function of the summary judgment procedure is issue finding, not issue determination. Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 (1957).
Respondent now seeks partial summary judgment under CPLR § 3212 on her affirmative defense of laches. Under the laches doctrine, equitable relief is barred where a party unreasonably or inexcusably delays in enforcing their right which results in prejudice to the opposing party. Marriot v Shaw, 151 Misc.2d 938, 940-941 (Civ Ct Kings Co 1991). In order to establish laches, a party must show:
(1) conduct by an offending party giving rise to the situation complained of, (2) delay by the complainant in asserting his or her claim for relief despite the opportunity to do so, (3) lack of knowledge or notice on the part of the offending party that the complainant would assert his or her claim for relief, and (4) injury or prejudice to the offending party in the event that relief is accorded to the complainant. All four elements are necessary for the proper invocation of the doctrine[.]Meding v Receptopharm, Inc., 84 A.D.3d 896, 897 (2nd Dept 2011) (citations omitted) see also 74A NYJur2d Limitations and Laches, § 364 (2009). A mere lapse of time, without a showing of prejudice, will not sustain a defense of laches. Saratoga Cty. Chamber of Commerce v Pataki, 100 N.Y.2d 801, 816 (2003). If a tenant is able to establish all four elements of laches, the burden then shifts to the landlord to show a reasonable excuse for the delay. Marriot at 941. If the landlord is not able to establish its burden, it will not be entitled to a judgment of possession in a summary proceeding for the stale rent. Id.
Here, the first element requires conduct by an offending party giving rise to the situation complained of. The second element requires that there be a delay on the claim for relief. The filing of the instant nonpayment satisfies prong one and the delay has been met since the Petitioner commenced this proceeding in June 2023 alleging rent owed from January 2020, forty-two months after the alleged accrual of arrears. See Marriot at 941 (finding a delay of more than three months in commencing a proceeding for nonpayment of rent satisfies the first two elements) see also Dedvukaj v Maldonado, 115 Misc.2d 211, 214 (Civ Ct Bronx Co 1982).
The third element requires lack of knowledge or notice on the part of the Respondent that the Petitioner would assert the claim. This prong is met only if Petitioner cannot show that Respondent had notice of the alleged arrears. In support of its claim for notice, Petitioner claims that Respondent was provided with notice because Petitioner previously brought a nonpayment case ("previous nonpayment") in June 2021 against James Riley, John Doe, and Jane Doe; that Respondent Beverly Horton allegedly received service as per the Affidavit of Substitute service in the previous nonpayment; and filed a Hardship Declaration on the previous nonpayment. However, Petitioner did not name the Respondent Beverly Horton, the movant here, in the previous nonpayment proceeding. Assuming arguendo that Respondent received service of any documents alleging rent owed for the subject premises in the previous nonpayment without Respondent's name appearing on the documents, the Petitioner cannot state that Respondent was on notice that it intended to ever collect the alleged arrears directly from her. Moreover, the Respondent asserting her rights as an occupant and filing a hardship declaration does not in and of itself show that the Respondent was given notice that the Petitioner ever intended to collect the rent arrears from her. Therefore, the previous nonpayment is insufficient as notice to Respondent Beverly Horton.
See NYSCEF Documents # 20, 22-23
See NYSCEF Document # 20
Lastly, the fourth element requires that there be prejudice against the tenant. A showing of prejudice may be done by a "showing of injury, change of position, loss of evidence or some other disadvantage resulting from delay." A & E Tiebout Realty v Johnson, 23 Misc.3d at 1112(A)(Civ Ct Bronx Co 2009) (Elderly and indigent tenant). Tenants asserting a laches defense have demonstrated prejudice by their inability to pay accumulated arrears due to having low income. Rota Holding Corp. No. 2 v Shea, 21 Misc.3d 1127 (A)(Civ Ct NY Co 2008) (a tenant's only source of income is limited public assistance and disability payments). Here, the Respondent is a senior who is suffering from medical conditions and has limited income in the form of SSI. Therefore, the fourth element has been met.
See NYSCEF Document # 10
As all four elements have been met, the burden now shifts to the Petitioner to show a reasonable excuse for the delay. The Petitioner sets forth the previous nonpayment case, the Eviction Rental Assistance Program ("ERAP") payment and the hardship declaration in its opposition as reasons for the delay. As discussed above, the Petitioner's previous nonpayment proceeding does not name the moving Respondent here. Moreover, Petitioner had the right to restore the previous nonpayment case and preserve its claim to the unpaid arrears instead they chose to file a Notice of Discontinuance. Additionally, Petitioner was paid by ERAP in December 2021. Any stay on commencing a new proceeding or restoring the pending proceeding was lifted in December 2021 when the final determination on the ERAP application was complete. Lastly, the hardship declaration filed by Respondent was no longer in effect as of January 15, 2022. See Administrative Order 34/22 (allowing nonpayment and holdover cases to proceed in the normal course). Thus, the Hardship Declaration did not prevent Petitioner from commencing a nonpayment proceeding after January 15, 2022, sixteen months prior to the commencement of the herein nonpayment proceeding. Therefore, Petitioner has not provided any reasonable excuse for a delay in bringing the herein nonpayment proceeding sixteen months after January 2022.
See NYSCEF Document # 16 ¶¶ 26-34
See NYSCEF Document # 24
See NYSCED Document # 16
As there are no genuine issues of material fact, the Court finds that the Respondent Beverly Horton only is entitled to partial summary judgment on her affirmative defense of laches. The Court does not make a determination about laches as it pertains to James Riley. The only remaining issue is how many months may be sought in this nonpayment proceeding. Courts have found that a Petitioner is not able to obtain a possessory judgment based on rent arrears older than six months. Westhab Inc v Friend, 31 Misc.3d 1224A (City Ct Mount Vernon 2011) citing 28 Market Street Corp v Gallo, 1998 NY A.D. LEXIS 14663 (2d Dept Jan. 20, 1998). Therefore, the proceeding may be maintained for possession only for the rent dating back to December 2022. Any alleged arrears owed between January 2020 and November 2022, totaling $30,385.15, are severed for a plenary action. The Court sua sponte amends the Petition to date to include any and all arrears due through September 2024.
It is ORDERED that Respondent's motion to file a late answer is GRANTED, and the proposed Answer is deemed served and filed.
It is further ORDERED that the Motion for Partial Summary Judgment is GRANTED. The matter is restored to the Court's calendar on October 29, 2024, at 9:30AM for all purposes.
The foregoing is the Decision/Order of this court.
So Ordered.