In this summary nonpayment proceeding, petitioner seeks to recover from respondent, $1,538.88 in rental arrears alleged due through January 2009 for her occupancy of Apartment 5B at 2200 Tiebout Avenue in Bronx county ("Apartment"). Respondent, through counsel, moves to interpose an amended answer and seeks summary judgment on her affirmative defenses of laches. Respondent also seeks dismissal of all possessory claims for air conditioning, washing machine and miscellaneous charges. Respondent's motion is granted for the reasons set forth below.

The salient facts are undisputed. Respondent is 73 years old and has lived in the Apartment for over 30 years. Her sole source of income is Social Security benefits of $694.00 per month. Since 1995, respondent has also received a Section 8 subsidy administered by the New York State Division of Housing and Community Renewal (DHCR) and is currently responsible for paying $179.30 per month in rent. Respondent has never been sued in Housing Court for any reason before now.

On September 23, 2008, petitioner commenced this proceeding seeking rental arrears for the months of August 2008 and September 2008 along with washing machine fees, air conditioning fees and miscellaneous charges. (Petition, ¶ 6.) In truth however, petitioner's rent breakdown reveals that, as of September 2008, respondent's alleged arrears spanned the period of October 2006 through September 2008. (Pet. Exh. 3, amended and dated January 8, 2009.) That breakdown further shows that respondent did not pay her share of the rent for the months of December 2006 through February 2007 as well as September 2007 and October 2007. (Id.) However, since November 2007, respondent has paid her share of the rent in full each month. (Id.)

Additionally, petitioner's breakdown indicates that, starting in February 2007, petitioner began charging respondent $28.62 each month, allegedly representing air conditioning, washing machine and miscellaneous charges. (Id.) Respondent did not pay these sums and petitioner now seeks a possessory judgment for the same.

As the parties consented to interposition of respondent's proposed amended answer nunc pro tunc, the court turns to the remaining branches of respondent's motion. [*2]

Summary judgment requires the proponent to make "a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact." (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]; CPLR § 3212[b].) The burden then shifts to the opponent to "show facts sufficient to require a trial of any issue of fact." (CPLR § 3212[b].) Should the opponent fail to produce proof in admissible form to raise triable issues of fact, the court must then grant summary judgment to the movant. (Alvarez, 68 NY2d at 324; Zuckerman v. City of New York, 49 NY2d 557, 598 [1980].) Although a drastic remedy, (Andre v. Pomeroy, 35 NY2d 361, 364 [1974]), the court may award summary judgment on any defense where the movant establishes entitlement to judgment as a matter of law. (CPLR § 3212[b].) Thus, summary judgment may be awarded on a laches defense. (Vigilance v. Bascombe, NYLJ, May 25, 1989, at 30, col. 1 [App Term 2d & 11th Jud Dists]; Marriott v. Shaw, 151 Misc 2d 938, 940 [Civ Ct Kings Co 1991]; Rodriguez v. Torres, NYLJ, January 22, 2003, at 22, col. 1 [Civ Ct Kings Co]; 446 Ocean, LLC v. Marcel, NYLJ, January 9, 2002, at 22, col. 1 [Civ Ct Kings Co]; Harlem Restoration Project v. Alexander, NYLJ, July 5, 1995, at 27, col.2 [Civ Ct NY Co]; and Jerweb Realty Co. v. Smith, NYLJ, June 30, 1993, at 25, col. 5 [Civ Ct Kings Co].)

Laches is an equitable doctrine based upon fairness. (Continental Cas. Co. v. Employers Ins. Co. of Wausau, 60 AD3d 128, 2008 NY Slip Op 10227 * 7 [1st Dept 2008].) It 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 [2003], cert den 540 US 1017 [2003]; Matter of Barabash, 31 NY2d 76, 81 [1972]; Dante v. 310 Associates, 121 AD2d 332, 333 [1st Dept 1986]; Skrodelis v. Norbergs, 272 AD2d 316, 316 [2d Dept 2000].) These core elements of unexplained delay and prejudice have been expanded to require a showing of:

(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.

74A NYJur2d Limitations and Laches, § 364 [2009]

(See Cohen v. Krantz, 227 AD2d 581, 582 [2d Dept 1996], citation omitted; Dedvuakj v. Madonado, 115 Misc 2d 211, 214 [Civ Ct, Bronx Co 1982]; Marriott v. Shaw, 151 Misc 2d at 480. See also Reynolds v. Snow, 10 AD2d 101, 111 [1st Dept 1960].)

Where a tenant establishes the elements of laches, the landlord is barred from recovering a possessory judgment for any arrears found to be stale. (1560-90 Pelham Pkwy. Assoc. v. Errico, 177 Misc 2d 947, 948 [App Term 1st Dept 1998] citing City of New York v. Betancourt, 79 Misc 2d 907, 908 [App Term 1st Dept 1974].) Equitable considerations, rather than inflexible timeframes, guide the court in determining whether rent claims are stale. (Mordland Assoc. v. Coccaro, NYLJ, August 25, 1987, at 5, col. 6 [App Term 1st Dept]; CHLC Corp. v. Gottlieb, NYLJ, October 19, 1988, at 28, col. 4 [App Term 2d & 11th Jud Dists].) Those claims are then deemed an action at law upon which petitioner may seek the entry of a money judgment. (City of New York v. Betancourt, 79 Misc 2d at 907 - 908; Vigilance v. Bascombe.)

Respondent has met each of the elements of laches. First, the parties agree that respondent [*3]did not pay rent for the months of December 2006 through February 2007; September 2007; and October 2007, which precipitated this proceeding.

Second, petitioner has unreasonably delayed in asserting its claim for the arrears now sought. Petitioner's breakdown reveals two key facts: (1) respondent's alleged arrears accrued over 23 months prior to commencement of this proceeding; and (2) since November 2007, respondent has paid the exact amount of her tenant share of the rent to petitioner without fail. Petitioner offers no explanation for its protracted delay in commencing this summary proceeding. Nor does petitioner even allege the existence of any impediment to an earlier suit. Instead, petitioner argues that respondent's payments were applied to her ongoing balance and therefore, the arrears sought represent current and not stale rent.

Petitioner's argument is unavailing. The general rule is that a debtor may direct how payments are to be applied but, where he/she fails to do so, the creditor may apply the payments as he/she sees fit. (Snide v. Larrow, 62 NY2d 633, 634 [1984], citations omitted.) There is no particular manner in which the debtor must direct the application of his/her payment. "A direction as to how payment is to be applied may be evidenced by circumstances as well as by words. A payment may be attended by circumstances which demonstrate its application as completely as words could demonstrate it." (L & T East 22 Realty Co. v. Earle, 192 Misc 2d 75, 76 [App Term 2d & 11th Jud Dists 2002] quoting Tayloe v. Sandiford, 20 U.S. 13, 20 [1822].) Thus, the debtor's intention to apply a payment to a particular debt may be inferred from various factors, including whether the amount of the payment equals the amount of a specific debt. (New York & Brooklyn Brewing Co. v. Angelo, 144 AD 655, 657 [2d Dept 1911]; Smith v. Mould, 87 Misc 199 [Sup Ct Cattaragus Co 1914]. See also 82 NYJur2d Payment & Tender, § 66 [2009].) Respondent's payments were consistently made at the beginning of each month as her rent came due. Further, these payments were always in the exact amount of her share of the rent for those months. The timing and amount of respondent's payments therefore dictate that they were intended to be applied toward her ongoing rent, and not for past arrears.

Further, even if respondent's intentions regarding the application of her payments were unclear, petitioner would still not have an absolute right to direct application of those payments. The right of a creditor to apply payments is subject to the general limitation that the application must be equitable and not work an injustice to the debtor. (Belden v. State, 103 NY 1, 9 [1886]; 82 NYJur2d Payment and Tender § 61 [2009]. See also Carson v. Federal Reserve Bank of New York, 254 NY 218, 232 [1930, Cardozo, C.J.], holding that "an application [of payments], usually appropriate, may be varied by the court when variance is necessary to promote the ends of justice.") To permit petitioner to apply respondent's payments to her past arrears to support its possessory claim would cause respondent who is elderly and indigent to lose her home of over 30 years. The court cannot countenance such a patently unjust result.

As petitioner seeks respondent's past arrears on pain of her eviction, respondent has amply demonstrated sufficient prejudice to support a laches claim. Contrary to petitioner's unsupported notions, laches does not require a showing that a landlord intended to "setup [sic] the tenant for eviction." (Zadrima Aff. in Opp., ¶ 5.) Rather, laches requires demonstrating prejudice which may be done " 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 [1st Dept 2005], quoting Skrodelis v. Norbergs, 272 AD2d at 317.) Petitioner's unreasonable delay in commencing this proceeding has [*4]left respondent unable to pay her alleged arrears for which she may be evicted from her home of over three decades. Thus, this element of laches has been amply met as well.

Finally, respondent has proven that she lacked actual or constructive notice that petitioner would sue her for the arrears now sought. Respondent states that she has never been sued for these arrears previously. (Johnson Moving Aff., ¶ 10.) Respondent further avers that she has never received a rent statement that reflected rental arrears. (Id., ¶¶ 11 - 12.) To the contrary, respondent notes that her rent statements reflected a credit on her account for the months of December 2006 through February 2007 as well as in September and October 2007 the only months in which respondent did not pay her rent. (Id.) Significantly, petitioner concedes that respondent's rent statements "reflected a negative balance" but contends that this was a mistake. (Zadrima Aff. in Opp., ¶ 10.) Regardless of whether petitioner's rent statements were in error, they confirm that respondent had no reason to believe that she would be sued for the arrears now claimed due.

As there are no genuine issues of material fact, respondent is awarded partial summary judgment on her affirmative defense of laches. The court finds that the only months for which respondent may owe rental arrears are December 2006 through February 2007 as well September 2007 and October 2007. Petitioner's claims for arrears for these months are severed to a plenary action. (Abart Holdings, LLC v. Hall, 2004 NY Slip Op 50823U, *1 [App Term 1st Dept], order relegating landlord to plenary action for stale rental arrears upheld.) All remaining rent claims are dismissed with prejudice.

Finally, petitioner also seeks to recover a possessory judgment for air conditioning, washing machine and miscellaneous charges. These charges even if valid do not constitute rent in a rent stabilized tenancy. (Graham Realty Associates, LLC v. Peller, 2006 NY Slip Op 50352[U], *1 [App Term 2d & 11th Jud Dists]; Tiffany Related, L.P. v. Faust, 19 Misc 2d 528, 529 [App Term 2d & 11th Jud Dists 2002]; Conversion for Real Estate, LLC v. Granik, 2004 NY Slip Op 51387[U], *5 [Civ Ct NY Co].) Thus, the court lacks jurisdiction to dispose of petitioner's non rent claims. (Graham Realty Associates, LLC v. Peller, citing Bedford Gardens Co. v. Silberstein, 269 AD2d 445, 445 [2d Dept 2000]. See also Lincoln Amsterdam House, Inc. v. Baxter, 249 AD2d 146, 146 [1st Dept 1998].) Respondent is therefore awarded summary judgment dismissing petitioner's claims for the foregoing fees without prejudice to seeking their recovery in a plenary action.

Accordingly, this proceeding is dismissed as outlined above. This constitutes the Decision/Order of the court, copies of which are being mailed to the parties' respective counsel today.

Dated:April 17, 2009

Bronx, NY

___________________________________________

Hon. Jaya K. Madhavan

Clerk of the Court