Opinion
19458/2014
01-09-2017
Alliance Housing II Associates, Petitioner-Landlord v. Rosilyn George, Respondent-Tenant.
Attorneys for Petitioner: Gary Friedman, Esq. Gutman, Mintz, Baker & Sonnenfeldt, LLP 813 Jericho Turnpike New Hyde Park, New York 11040 (516) 775-7007 Attorney for Respondent: Cristina Castro, Law Graduate Bronx Legal Services 349 East 149th Street Bronx, New York 10451
Attorneys for Petitioner: Gary Friedman, Esq. Gutman, Mintz, Baker & Sonnenfeldt, LLP 813 Jericho Turnpike New Hyde Park, New York 11040 (516) 775-7007 Attorney for Respondent: Cristina Castro, Law Graduate Bronx Legal Services 349 East 149th Street Bronx, New York 10451 Diane E. Lutwak, J.
Recitation, as required by CPLR Rule 2219(a), of the papers considered in the review of Respondent Rosilyn George's motion for partial summary judgment: Papers Numbered Respondent's Notice of Motion, Affidavits and Exhibits A-T 1 Respondent's Memorandum of Law in Support of Motion 2 Petitioner's Affirmation in Opposition and Exhibits 1-3 3 Respondent's Affidavit in Reply 4
Upon the foregoing papers, and for the reasons set forth below, Respondent's motion for partial summary judgment is granted in part and denied in part. BACKGROUND & PROCEDURAL HISTORY
This is a nonpayment eviction proceeding brought by Alliance Housing II Associates, a federally subsidized, project-based Section 8 building, against Rosilyn George, the tenant of Apartment BC at 1105-25 Anderson Avenue, Bronx, New York. The lengthy procedural history of this proceeding is as follows.
Paragraph 7 of the Petition alleges that the subject premises are subject to the Rent Stabilization Law; however, Petitioner now acknowledges that, rather than Rent Stabilization, Respondent's tenancy is subject to federal regulations applicable to project-based Section 8 buildings. See fn 3, supra.
The petition was filed on March 31, 2014 and sought rent arrears of $14,553, comprised of rent at the rate of $1243 per month for the months of May 2013 through and including March 2014 plus a balance of $880 due for the month of April 2013. Respondent's son Anthony George filed an Answer on April 11, 2014, raising a general denial and a defense of payment, and the case was calendared for April 18, 2014. Respondent failed to appear, the court entered a default judgment against her on April 22, 2014 and the warrant was issued to City Marshal McCoy on May 20, 2014. Respondent took out an Order to Show Cause on June 25, 2014, and on the July 11, 2014 return date the court appointed a guardian ad litem (GAL) for her and adjourned the proceeding to August 13, 2014. After another adjournment, the GAL and Petitioner's counsel entered into a Stipulation of Settlement on September 18, 2014 which stayed execution of the warrant of eviction through October 18, 2014 for Respondent to pay $22,011 and noted that a "rent history" had been provided. Thereafter, the GAL filed three more orders to show cause (returnable November 21, 2014, January 16, 2015 and March 12, 2015, respectively) seeking extensions of the payment deadline, each of which were granted either on consent or by court order. The arrears had increased to $28,129 by the time of the court's order on March 12, 2015. A fifth order to show cause returnable April 21, 2015 taken out by Respondent was denied, as was a sixth order to show cause returnable May 21, 2015 which had been taken out by Respondent's son. The rent arrears at that point were alleged to be $30,615.
Respondent then retained counsel who took out a seventh order to show cause returnable June 16, 2015, on which date the GAL's application to be relieved from her duties was granted and the motion was taken on submission. That order to show cause sought vacatur of the default judgment and the subsequent stipulations, leave to file an amended answer, and dismissal for failure to plead the correct regulatory status of the premises and failure to comply with federal requirements. By decision and order dated August 3, 2015 the court granted Respondent's motion to the extent of vacating the default judgment and subsequent stipulations, granting leave to file an amended answer and restoring the case to the court's calendar.
Thereafter, the case was adjourned approximately a dozen times while the parties through their attorneys attempted to settle it, initially by taking steps to resolve problems with Respondent's annual rent subsidy recertification process dating back to the year 2012. For example, a stipulation dated January 19, 2016 which adjourned the proceeding to February 25, 2016 stated, "Petitioner acknowledges that Respondent and her son Anthony George have submitted all documentation required to compute their annual recertification for the years 2012, 2013, 2014, 2015 and 2016. Upon processing the recertifications Petitioner's counsel will notify Respondent's counsel of the new rent going forward." Once the recertification process was completed, the proceeding was adjourned several more times for Petitioner to provide an updated rent breakdown reflecting the effect of the retroactive processing of Respondent's recertifications. First, on February 25, 2016, the parties' counsel adjourned the proceeding to March 24, 2016 in a stipulation that stated, "Petitioner's counsel to confer with his client and provide Respondent's counsel with an updated rent breakdown that reflects Petitioner's processing of Respondent's recertifications for the years 2012, 2013, 2014, 2015 and 2016. Petitioner's counsel to provide Respondent's counsel with the updated breakdown at least 1 week prior to the next court date." Next, on March 24, 2016 the parties' counsel adjourned the matter to April 25, 2016 in a stipulation which stated, "Petitioner to provide Respondent's counsel with an understandable rent breakdown and with Respondent's current monthly rent within 10 days of this stipulation." On April 25 the parties' counsel adjourned the matter to May 25 in a stipulation indicating that they still hoped to reach a resolution but which stated, "Petitioner and Respondent have attempted to agree on the amount potentially owed, but questions remain from the breakdown Petitioner tendered to Respondent." On May 25 the parties' counsel adjourned the matter to June 13 for answers to a set of four questions regarding specific items on Petitioner's rent breakdown.
Apparently, the parties' attorneys were not able to resolve their differences and arrive at a settlement, as they again adjourned the case on June 13 with a briefing schedule for a motion to be filed by Respondent's counsel seeking partial summary judgment. However, settlement negotiations continued, and on August 15 the proceeding was adjourned to August 22 "in contemplation of settlement", according to a notation on the court file jacket. On August 22 the proceeding was adjourned to September 9, after which Respondent filed a motion returnable November 2, 2016, Petitioner filed its opposition on November 28 and Respondent filed reply on December 20, 2016.
In her motion, Respondent seeks partial summary judgment on two issues:
First, Respondent points to a rent breakdown Petitioner produced in court on September 9, 2016 (Exhibit T to the motion) which dates back to March 2012 and shows arrears of $7693 owed through August 4, 2016. Respondent asks the court to find that the doctrine of laches bars Petitioner from seeking a possessory judgment for a portion of those arrears, specifically $3255 in rent allegedly owed for the months of March 2012 through February 2013, arguing that this claim is stale as it dates back more than one year prior to the commencement of this proceeding in March 2014.
In her affidavit in support of the motion, Respondent asserts that she was not aware that she owed rent dating back to March 1, 2012 until September 2016 when she saw Petitioner's rent breakdown. She also explains that her only income is the assistance she receives from City's Department of Social Services/Human Resources Administration (DSS).
Second, Respondent seeks summary judgment on her defense of partial payment, specifically five checks from DSS adding up to $427. Copies of these five checks, the backs of which show that they were stamped "FOR DEPOSIT ONLY" by Petitioner and that they cleared, are attached as Exhibit B to Respondent's motion papers. None of these five DSS checks, each of which is identified by a distinctive 8-digit number, are credited on Petitioner's rent breakdown, which does list other checks identified by other 8-digit numbers.
The five checks are: #44404776 dated 9/4/13 for $183; #44404777 dated 9/4/13 for $61; #29123088 dated 10/2/13 for $61; #29234766 dated 10/17/13 for $61; #29346550 dated 11/2/13 for $61.
Petitioner opposes Respondent's motion with its attorney's affirmation and an affidavit of its agent Eli Davidowitz who avers that he has knowledge of the facts based upon his "daily management of and oversight over the properties owned and managed by petitioner." Affidavit in Opposition at ¶ 2. With regard to laches, Petitioner explains that, "In order to determine the arrears owed by the Respondent, the parties agreed to allow the Respondent to retroactively recertify her income since she failed to certify properly in 2013. Thereafter, Petitioner adjusted the Respondent's rent breakdown based upon the amount owed by the Respondent each month." Affidavit in Opposition at ¶ 12. Petitioner argues that it "has not unreasonably or inexcusably delayed in undertaking to enforce its rights". Affirmation in Opposition at ¶¶ 22, 40, 46; Affidavit in Opposition at ¶¶ 11, 12. Petitioner points to "the parties' long history of litigation" to further support its position that Respondent's motion should be denied. Affirmation in Opposition at ¶¶ 10, 21, 22, 36, 40, 45, 46; Affidavit in Opposition at ¶¶ 7, 8, 9, 11, 14.
While it is not relevant to the issues addressed in this decision, the court notes that Petitioner implicitly acknowledges that the Petition incorrectly states that the premises are subject to Rent Stabilization; its agent's affidavit states that, "[t]he subject premises are subject to HUD regulation, as this building is a project-based Section 8 building." Affidavit in Opposition at ¶ 5.
With regard to the five cashed but uncredited DSS checks, Petitioner states, "contrary to the Respondent's claim, my office has credited all payments received to the Respondent's account", Affidavit in Opposition at ¶ 10, and references a rent ledger dated November 1, 2016, attached as Exhibit 1. This ledger, as well as a subsequent one dated December 20, 2016 which Petitioner submitted to the court at the time of oral argument, reflects receipt in the "Payment Info" column of various checks identified by 8-digit numbers. However, neither ledger reflects receipt of any of the five cancelled DSS checks Respondent provided copies of in her moving papers.
Petitioner's rent ledger dated December 20, 2016 is identical to the one dated November 1, 2016 except that it includes entries subsequent to November 1, 2016. Whereas the ending balance on the November ledger is $7809, the ending balance on the December ledger is $7591. Respondent's rent arrears appear to be slowly diminishing because ever since February 2016, each month Petitioner has billed Respondent rent of $157 but credited her with $250, apparently due to its receipt of semi-monthly DSS shelter allowance checks of $125 each.
Also to be noted is that Petitioner's two ledgers begin with the month of March 2012 and show negative balances at all times until the month of November 2013. On November 1, 2013, whereas Petitioner's ledgers show a negative balance of $2825, at the end of that month, on November 30, 2013, the ledgers reflect a charge of $9947 and, after subtracting the negative balance, an "Opening Balance" of $7122. Petitioner's agent does not explain the reason for the $9947 charge or why the format, terminology and content of these two ledgers differ substantially from that of the ledger provided to Respondent in court on September 9, 2016. On reply, Respondent argues that Petitioner "refuses to resolve this case unless Respondent tenders arrears beyond what was initially sought in the Petition," Affidavit in Reply at ¶ 4, and that "Petitioner has failed to meet [its] burden since it has offered no explanation as to why it waited until September 2016 to seek arrears dating back to March 2012", id. at ¶ 10. Respondent does not address the differences between the ledger she relies on her moving papers and the one attached to Petitioner's opposition papers, and also does not respond to Petitioner's explanation that the reason for its delay was that until Respondent completed her retroactive recertifications it was not able to adjust her rent ledger. DISCUSSION
Summary judgment is a drastic remedy which should not be granted where there is any doubt as to the existence of material and triable issues of fact. Sillman v Twentieth Century-Fox Film Corp (3 NY2d 395, 404, 144 NE2d 387, 165 NYS2d 498, 505 [1957]). The court should not pass on issues involving credibility, as the function of summary judgment is "issue finding, not issue determination". Rodriguez v Parkchester South Condominium, Inc (178 AD2d 231, 577 NYS2d 52, 53 [1st Dep't 1991]). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. Winegrad v New York Univ Med Center (64 NY2d 851, 853 [1985]); Zuckerman v New York (49 NY2d 557, 427 NYS2d 595 [1980]. Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Alvarez v Prospect Hospital (68 NY2d 320, 324, 508 NYS2d 923, 925-926 [1986]); Zuckerman v New York (49 NY2d at 562, 427 NYS2d at 598).
With regard to Respondent's laches defense, this doctrine bars the enforcement of a right where there has been an unreasonable and inexcusable delay that results in prejudice to an opposing party. Saratoga County Chamber of Commerce v Pataki (100 NY2d 801, 816, 798 NE2d 1047, 766 NYS2d 654 [2003], cert den 540 US 1017, 124 SCt 570, 157 L Ed 2d 430 [2003]; Matter of Barabash (31 NY2d 76, 81, 286 NE2d 268, 334 NYS2d 890 [1972]); Dante v 310 Associates (121 AD2d 332, 333, 503 NYS2d 786 [1st Dep't 1986]); Skrodelis v Norbergs (272 AD2d 316, 707 NYS2d 197 [2d Dep't 2000]). 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 the relief is accorded to the complainant. With regard to the prejudice prong of the laches test, this may be demonstrated "by a showing of injury, change of position, loss of evidence, or some other disadvantage resulting from the delay.'" In re Linker (23 AD3d 186, 189, 803 NYS2d 534 [1st Dep't 2005]), quoting Skrodelis v Norbergs (272 AD2d at 317). All four elements are necessary for the proper invocation of the doctrine. A & E Tiebout Realty v Johnson (23 Misc 3d 1112[A], 885 NYS2d 710 [Civ Ct Bx Co 2009], aff'd, 26 Misc 3d 131[A], 907 NYS2d 98 [App Term 1st Dep't 2010]). Once these four elements are shown to exist, the burden of proof shifts to the opposing party, who "bears the burden of proving that there was a reasonable excuse for the delay" and further "may also offer evidence tending to disprove the four conditions." Dedvukaj v Madonado (115 Misc 2d 211, 453 NYS2d 965 [Civ Ct Bx Co 1982]). See also, e.g., Marriott v Shaw (151 Misc 2d 938, 574 NYS2d 477 [Civ Ct Kings Co 1991]).
Laches is an equitable doctrine based upon fairness, and whether the doctrine applies "depends on the facts of the case." Continental Cas Co v Employers Ins Co of Wausau (60 AD3d 128, 137, 871 NYS2d 48, 55 [1st Dep't 2008]), cited in Nunz Realty, LLC v McBride (40 Misc 3d 1229[A], 975 NYS2d 710 [Civ Ct NY Co 2013])(denying respondent-tenant's motion for summary judgment on laches defense due to the presence of material issues of fact and noting that "delay alone is insufficient to establish laches" and that "the parties assert different facts as to whether Respondents have been prejudiced by the delay"). See also, e.g., Dedvukaj v Madonado, supra (restoring case to calendar for a hearing and trial on respondent-tenant's laches defense).
Respondent has made a prima facie showing on each of the elements of laches. First, Petitioner's rent ledger attached as Exhibit T to Respondent's moving papers reflects that it has a claim against Respondent for rent arrears of $7963. Second, the delay is also evident from the rent ledger, which dates back to March 1, 2012, over two years prior to when this proceeding was commenced, and reflects that no rent payments were received from March 2012 through November 2013. Third, as set forth in Respondent's affidavit at ¶ 15, she had no knowledge or reason to know of Petitioner's claim for rent arrears for the period of March 2012 through March 2013 - they were not mentioned in the rent demand or the Petition - until Petitioner provided the breakdown in September 2016. Finally, as Petitioner seeks Respondent's eviction, and Respondent has demonstrated that she is someone of very limited means — her only income is public assistance — she has demonstrated sufficient prejudice to support a laches claim. See, e.g., 1515 Macombs, LLC v Jackson (50 Misc 3d 795, 20 NYS3d 869 [Civ Ct Bx Co 2015])(in a decision granting summary judgment to respondent-tenant on her defense of laches, finding that the prejudice prong "has been satisfied by evidence that the Tenant, who is a senior citizen on a fixed and limited income, lacks any savings or significant resources to pay the large rental arrears now accumulated Even were she to apply for financial assistance from the NYC Human Resources Administration, no approval could be guaranteed"); Bldg Mgmt Co v Bonifacio (25 Misc 3d 1233[A], 906 NYS2d 770 [Civ Ct NY Co 2009])(in a decision granting summary judgment to respondent-tenant on her defense of laches, noting that "Respondent has sworn in an affidavit that she has neither the current income nor the means to raise funds to offset the substantial arrears" and finding, accordingly, that Respondent had satisfied the prejudice element of laches); A & E Tiebout Realty v Johnson, supra (in a decision granting summary judgment to respondent-tenant on her defense of laches, finding that, "As petitioner seeks respondent's past arrears on pain of her eviction, respondent has amply demonstrated sufficient prejudice to support a laches defense").
As Respondent has met her initial burden of making a prima facie showing of the existence of the four elements of the defense of laches, the burden shifts to Petitioner to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial. In opposing Respondent's motion, Petitioner has raised issues of fact. First, Petitioner has explained — and it is not disputed - that it was not until Respondent retroactively recertified her income for the years of 2012 through 2016 during the pendency of this proceeding that Petitioner was able to then adjust its rent ledger to reflect the resulting changes in Respondent's subsidy and tenant portions of her rent on a month-by-month basis. To the extent Respondent may now owe rent for months dating back over two years prior to the commencement of this proceeding, Petitioner has raised a credible explanation for its delay sufficient to require a trial.
In addition, the rent ledgers Petitioner produced in opposition to Respondent's motion are different from the one it provided Respondent in September and the discrepancies raise many questions. These ledgers show no rent arrears other than $39 in and for the months of April 2012 through March 2013 until November 30, 2013, just four months prior to the commencement of this proceeding. They also show a negative balance in Respondent's rent account in the months of March 2013 through and including November 1, 2013. On November 30, 2013 the ledgers then reflect an unexplained charge of $9947 and an "Opening Balance", after subtracting the existing negative balance of $2825, of $7122. What is the basis for that charge of $9947? Why does it appear as a lump sum due on November 30, 2013? What is the meaning of the terminology used in the "Type" column: "Billing Correction", "Fabricated Billing" and "Fabricated Payment"? These — and others - are all questions which cannot be answered on the papers submitted to the court, and with regard to which there will need to be testimony from witnesses with knowledge of the facts. Then the court will be able to determine whether Petitioner is entitled to collect all of the funds it is seeking or whether they are barred by the doctrine of laches.
On the other hand, with regard to Respondent's defense of partial payment in the form of five DSS checks totaling $427, Respondent has shown conclusively that Petitioner received and cashed them but did not credit them to Respondent's rent account. Petitioner has failed to make a credible showing to contradict Respondent's evidence. Petitioner's agent asserts in a conclusory manner that his office "has credited all payments received to the Respondent's account." Affidavit in Opposition at ¶ 10. However, he does not mention the five particular DSS checks which Respondent provided copies of, and a review of Petitioner's rent ledger reveals that while other payments with similar 8-digit check numbers were received and credited, no such crediting of these five specific cancelled checks — each of which bears Petitioner's "FOR DEPOSIT ONLY" stamp on the reverse side - appears anywhere in the ledger. Accordingly, Petitioner has not raised a material issue of fact on this issue and Respondent is entitled to partial summary judgment as a matter of law in the form of an order reducing the amount of her arrears by $427. CONCLUSION
Respondent's motion for partial summary judgment is granted to the extent of reducing the balance due by $427, the total amount of the five cancelled DSS checks which the court finds were received by Petitioner and cleared through its bank but not credited to Respondent's rent account. This proceeding is restored to the court's calendar for settlement or trial on February ?, 2017.
This constitutes the Decision and Order of this Court, copies of which are being distributed in court to the parties' attorneys. Dated: Bronx, New York January 9, 2017 Diane E. Lutwak, Hsg. Ct. J.