Civil Court of the City of New York, Bronx County, April 17, 2019

Law Office of Benjamin Z. Epstein PC for petitioner.

Bronx Legal Services (Oswald Feliz of counsel) for Joel Rosales, respondent.

The decision and order on this motion is as follows:

Procedural History and Facts

Petitioner BAE 193 Realty LLC commenced this nonpayment proceeding to recover possession of the rent-stabilized subject premises by service of a notice of petition and petition dated June 6, 2018. Respondent Joel Rosales interposed a pro se answer on July 13, 2018, alleging a general denial and that conditions in the apartment need repair. The proceeding first appeared on the calendar on July 20, 2018, at which time it was adjourned to August 28, 2018, for respondent to seek legal counsel. Respondent retained Bronx Legal Services, and on August 28, 2018, the proceeding was adjourned by stipulation to October 11, 2018, for respondent's attorney to "investigate the legal regulated rent for the subject premises." On October 11, 2018, the proceeding was again adjourned by stipulation to November 27, 2018, for respondent to serve and file an amended answer and for petitioner to provide documents supporting the legal regulated rent for the premises. On November 27, 2018, by agreement, petitioner accepted respondent's amended answer which interposed the following defenses: defective rent demand, tender and refusal, overcharge, laches, breach of the warranty of habitability, and harassment. Respondent also sought an order to correct housing maintenance code violations and to recover attorneys' fees. The proceeding was adjourned by stipulation to February 14, 2019, on which date the proceeding was again adjourned by stipulation to March 19, 2019. On March 19, 2019, the parties stipulated to further adjourn the proceeding to May 16, 2019, for petitioner to provide requested discovery documents in settlement of respondent's previously made motion for discovery. Petitioner reserved its right to move for use and occupancy.

Petitioner now moves for use and occupancy pursuant to RPAPL 745 (2) by notice of motion dated March 27, 2019, and{**63 Misc 3d at 950} returnable April 8, 2019. Respondent opposes based on the equitable doctrine of laches claiming that it would be prejudicial to require respondent to pay the post-petition use and occupancy almost nine months into the litigation. Respondent further claims that no use and occupancy should be awarded because respondent's overcharge claim, if successful and if he were to be awarded treble damages, would offset the amount of use and occupancy claimed. Oral argument was held on April 12, 2019.

Discussion

Section 745 (2) (a) of the RPAPL, which was amended by the Rent Regulation Reform Act of 1997, provides in relevant part:

"In a summary proceeding upon the second of two adjournments at the request of the respondent, or, upon the thirtieth day after the first appearance of the parties in court less any days that the proceeding has been adjourned upon the request of the petitioner, whichever occurs sooner, the court shall direct that the respondent, upon an application by the petitioner, deposit with the court within five days sums of rent or use and occupancy accrued from the date the petition and notice of petition are served upon the respondent, and all sums as they become due for rent and use and occupancy, which may be established without the use of expert testimony . . . ."

Under RPAPL 745 (2), if the respondent fails to make the deposit, or makes an initial deposit but not subsequent deposits, the consequences are dire. In the first instance, the answer and all defenses will be stricken. (RPAPL 745 [2] [c] [i].) In the second instance, the parties will be sent for an immediate trial. (RPAPL 745 [2] [c] [ii].)

The legislature's intent in enacting RPAPL 745 (2) was to

"end what was perceived to be an abuse of the summary proceeding process whereby tenants were granted multiple adjournments for varying reasons while rent continued to accrue and the tenant had absolutely no financial ability to satisfy a judgment should the landlord prevail in the action. The objective of the legislation is to either require the rent to be posted and thereby secure the landlord of payment if victorious, or to have an immediate trial of the underlying issues." (Yellen v Baez, 177 Misc 2d 332, 334 [Civ Ct, Richmond County 1997].){**63 Misc 3d at 951}

Implicit in the statute is the concern that indigent tenants, if granted multiple adjournments over the course of the proceeding, would not be able to satisfy any judgment ultimately awarded to the landlord if they were not required to deposit their rent monthly into court during the course of the litigation. (See id.) The purpose of the statute is to preserve the status quo and contemplates that the landlord will apply for a rent deposit upon the second of two adjournments or the passage of 30 days since the first appearance. The statute is meant to protect landlords against prejudice from delays caused by the tenant. Under the facts and circumstances of the case at bar, based on the principles of fairness, due process, and the strong public policy in favor of resolving disputes on the merits, the court finds that it is respondent who is prejudiced by petitioner's delay.

Laches is an equitable defense based on fairness. (Continental Cas. Co. v Employers Ins. Co. of Wausau, 60 AD3d 128, 137 [1st Dept 2008].) The essence of a laches claim is "neglect or omission to assert a right and the resulting prejudice to an adverse party." (Matter of Linker, 23 AD3d 186, 189 [1st Dept 2005].) Prejudice may be established by a showing of "injury, change of position, loss of evidence, or some other disadvantage resulting from the delay." (Id., quoting Skrodelis v Norbergs, 272 AD2d 316, 317 [2d Dept 2000].) In the context of housing court proceedings, prejudice from delay has been held satisfied by evidence that the tenant is poor and no longer has the resources to pay a large amount of rental arrears. (See Vigilance v Bascombe, 1989 NY Misc LEXIS 946 [App Term, 2d Dept, May 25, 1989]; Dedvukaj v Madonado, 115 Misc 2d 211 [Civ Ct, Bronx County 1982]; Marriott v Shaw, 151 Misc 2d 938 [Civ Ct, Kings County 1991].)

Petitioner adjourned this case six times and waited 210 days from the time it was ripe to move for a rent deposit under RPAPL 745 (2). At oral argument it was clear from the statements of both parties that respondent, who qualifies for free legal services, does not have all of the post-petition rent requested by petitioner, and would not be able to pay this lump sum in five days as required by the statute in order to preserve his defenses or avoid an immediate trial. Moreover, respondent challenges the legality of the rent in his amended answer, and the court considers the numerous troubling facts alleged, and{**63 Misc 3d at 952} not refuted by petitioner,^[FN1] regarding the legality of the rent including an 80% vacancy increase between the prior tenant's rent and respondent's initial rent.^[FN2] (Affirmation of respondent's counsel at 7.)

As stated above, the intent of the statute is to protect landlords from prejudice caused by delays at the tenant's request. It would not serve the purposes of the statute to, because of petitioner's delay, put respondent at risk of suffering the dire consequence of having his overcharge defense stricken for not paying a lump sum that may be offset if he is successful at trial on his properly interposed defenses.^[FN3] ,^[FN4] Although RPAPL 745 (2) has been found to be constitutional in individual situations, the court must prevent the application of the law in a manner that would deprive respondents of their due process rights. (Lang v Pataki, 176 Misc 2d 676 [Sup Ct, NY County 1998], affd 271 AD2d 375 [1st Dept 2000], appeal dismissed 95 NY2d 886 [2000].) The holding in Lang is read by the court together with decisions espousing the strong public policy in this state of resolving disputes on the merits. (See e.g. Chevalier v 368 E. 148th St. Assoc., LLC, 80 AD3d 411, 413-414 [1st Dept 2011].) Accordingly, under the facts and circumstances of this case, the court holds that RPAPL 745 (2) should not be applied to require the deposit of all post-petition rent.

However, distinct from the lump-sum payment of the post-petition use and occupancy which the court does not order, the court sees no reason not to balance the competing interests of the parties and apply the statute to require payment of use and occupancy accruing from the date the petitioner made its motion on March 27, 2019. Thus, the amount to be paid{**63 Misc 3d at 953} petitioner is set at $1,227.09 per month, which is what respondent claims to be the legal regulated rent for the premises as yet to be determined at trial. (Affirmation of respondent's counsel at 24.)^[FN5] Notably, petitioner's attorney indicated at oral argument that $1,200 is an amount at which petitioner was willing to set use and occupancy, albeit also for accrued post-petition rent which has been disallowed as set forth herein. Accordingly, respondents are ordered to pay $1,227.09 directly to petitioner by May 3, 2019 (which will allow for the mailing of this order to the parties).^[FN6] Thereafter, the monthly use and occupancy shall be paid directly to petitioner by the 15th of each month for so long as this litigation is pending. If mailed by regular mail, the payments directed herein must be postmarked by the 10th day of each month. If mailed by overnight mail, the payments must be postmarked by the 14th day of each month. If delivered directly to petitioner or its attorney, petitioner and/or its agents must provide a receipt pursuant to Real Property Law § 235-e.