Opinion
65049/10.
Decided May 16, 2011.
Larry Rukaj, Broja Realty, LLC, Franklin Lakes, N.J., Appearing for Plaintiff.
Sujaila Amparo, pro se, Bronx, NY, Appearing for Defendant.
Upon the foregoing, the Decision/Order after trial is decided as follows:
Landlord brings this action to collect late fees totaling $3750.00 for rental payments that were made beyond the 5-day "grace period" on 73 months, over the last six years.
Defendant testified that during most of those months she was receiving public assistance and she received her allowance after the rent payment was due. Moreover, she stated that the Claimant is now seeking $50.00 per month for late fees, yet she had always been charged $25.00, and that she paid many of those fees. She produced a ledger which the landlord, admittedly, provided to her which shows a late fee charge of $25.00 per month for the months in question. Defendant also testified that in October, 2010, the parties were in Housing Court and that she paid $400.00 in late fees then; and, that she no longer has the records for most of the late payments that Claimant now seeks because they occurred so long ago.
Mr. Larry Rukaj, a principal in the Claimant corporation, and son of the president of the corporation, testified on behalf of Claimant that there was no attempt to collect the late fees previously because, simply, his father, chose not to, so as to maintain good relations with the Defendant tenant, but that he, the son, is attempting to bring the corporation's books up to date; and, that he maintains two sets of accounting books, one set is for Housing Court purposes, and the other set is for situations like the instant one — to present proof in Small Claims Court. Mr. Rukaj stated that since Defendants's apartment is rent stabilized, and is registered with the Department of Housing and Community Renewal, Claimant is not permitted to collect late fees in Housing Court, so he presents there the corporate books that reflect a late fee of $25.00 to show that Defendant was billed for late fees, but that there has been no attempt to collect any late fees. Mr. Rukaj also testified that the Defendant is otherwise a good tenant and that her rent is now up to date.
It is this court's belief that although Claimant has brought this action within the appropriate statute of limitations period, the Claimant has inexcusably delayed in asserting its claim. Claimant permitted six years of late fees to accumulate before bringing this action; most of the fees sought go back more than four years. Defendant had no knowledge that this claim would be asserted, especially since, as Mr. Rukaj testified, he previously raised this matter in Housing court, almost pro forma, but never sought to collect it. The Defendant is prejudiced by the late assertion because, as she testified, she no longer has the records of the prior bills therefor, nor for the payments that she claims to have made. This may have entitled Defendant to judgment under a laches theory if the action were brought in another court (see, Kuhn v Town of Johnston, et al., 248 AD2d 828, 669 NYS2d 757); Cohen v Krantz, 27 AD2d 581, 643 NYS2d 612); Dwyer v Mazzola, 171 AD2d 726, 567 NYS2d 281). However, inasmuch as laches may be unavailable here (see, McKinney's NY City Civ. Ct. Act. § 1801; Hellman v Ploss, 46 AD2d 658, 359 NYS 2d 823; Hawk Mountain Landowners Ass'n v Fogelson, 159 Misc 2d 307, 603 NYS 2d 986); Mallardi v District 37 Health Sec. Plan Trust, 128 Misc 2d 696, 40 NYS 2d 968), the court finds that for the same reasons, substantial justice requires that the claim be barred (see McKinney's NY City Civ. Ct. Act § 1804; Hampton v Annal Management Co., LTD, 164 Misc 2d 287, 624 NYS 2d 764; Mongelli, et al. v Cabral, et al. 166 Misc 2d 240, 632 NYS 2d 927). And although some of the late charges which Claimant seeks to collect are of more recent vintage, Claimant's use of two different accounting books reflecting different charges for late fees for the same period — one set presented in one court and the other presented in another court — militates against awarding Claimant any of the fees sought. The court considers this a shady or unseemly practice.
Accordingly, the court finds for the Defendant, and the Claimants' Complaint is dismissed.
This constitutes the decision and order of this court.