In this nonpayment proceeding, petitioner, R.M.H. Estates, alleges that respondent, Alan Hampshire, owes, in addition to current rent, $23,097.39 in arrears, at $452.89 a month from May 2002 through July 2006. Respondent moves for summary judgment dismissing the petition. According to respondent, petitioner violated the equitable doctrine of laches by waiting to seek arrears. In the alternative, respondent requests that this court clarify for trial the amount that petitioner may seek as a money judgment only, as opposed to the amount not excluded by laches for which petitioner may seek a possessory judgment. Respondent's motion is denied. No portion of the arrears allegedly owed is subject to laches. Accordingly, the court will not reach what sums are subject to possessory and nonpossessory judgments.



[*2]The Facts

The facts are not in dispute. Respondent had been living in the subject apartment for fifteen years with Thelma Baer, the tenant of record, until she died on May 23, 2002. On June 17, 2002, petitioner commenced a holdover proceeding alleging that respondent was a licensee whose license expired upon Baer's death. Petitioner sought use and occupancy in the holdover petition, . On July 22, 2002, after a trial, the Honorable Larry S. Schachner found that respondent was a nontraditional family member under Rent Stabilization Code § 2520.6 (0) (2) entitled to succeed to the subject apartment.

On July 7, 2003, petitioner appealed to the Appellate Term, First Department. On August 24, 2004, the Appellate Term reversed, holding that respondent failed to establish succession rights to the apartment as a nontraditional family member. (See R.M.H. Estates v Hampshire, 5 Misc 3d 43, 44 [App Term, 1st Dept 2004, per curiam].)

On January 6, 2005, the Appellate Division, First Department, granted respondent leave to appeal. On February 18, 2005, petitioner moved for an order requiring respondent to pay past and future rent for the subject apartment. On March 31, 2005, the First Department denied petitioner's motion without prejudice.

On May 19, 2005, the First Department reversed the Appellate Term's decision and dismissed the petition. (See R.M.H. Estates v Hampshire, 18 AD3d 326 [1st Dept 2005, mem].) The Appellate Division found that "respondent and Ms. Baer lived together for 15 years as non-traditional family members.'" (Id. at 327.)

In July 2005, respondent mailed petitioner two checks: one for July 2005 rent and another for August, September, and October 2005 rent. Petitioner did not cash these checks at the time.

Petitioner moved for leave to appeal to the Court of Appeals on February 7, 2006. The Court of Appeals denied leave on April 11, 2006.

In May 2006, petitioner attempted to cash the two rent checks that respondent had sent to petitioner in July 2005. One of these checks did not clear.

Since May 2006, respondent has sent petitioner two more checks: a check for $905.78 dated July 13, 2006, for June and July 2006 rent and a second check, for $452.89, on August 18, 2006, for August 2006 rent. Petitioner has not attempted to cash these checks.

On June 26, 2006, petitioner served respondent with a five-day demand for rent from May 2002 through June 2006 at $452.89 a month, for a total of $22,644.50. On July 10, 2006, petitioner commenced this nonpayment proceeding.

[*3]Conclusions of Law

The movant on a motion for summary judgment bears the burden of setting forth admissible facts to establish a prima facie showing of an entitlement to a judgment as a matter of law. (Winegrad v NY Univ. Med. Ctr., 64 NY2d 851, 853 [1985, mem], citing Zuckerman v City of NY, 49 NY2d 557, 562 [1980].) The movant must show that no material issues of fact exist. (Id.) Summary judgment should be granted only when a defense is established sufficiently to warrant the court to direct judgment as a matter of law. (CPLR 3212 [b].)

The defense of laches bars equitable claims when a party's unreasonable and inexcusable delay prejudices an adversary. (Brennan v Nassau County, 352 F3d 60, 64 [2d Cir 2003]; Saratoga County Chamber of Commerce, Inc. v Pataki, 100 NY2d 801, 816 [2003].) The defense exists because it would be wrong to allow a tenant to be evicted after a landlord waits until the arrears are so high that the tenant can no longer pay them. To establish the affirmative defense of laches in this landlord-tenant proceeding, respondent must show that (1) his conduct gave rise to this nonpayment proceeding; (2) petitioner had the opportunity to bring this proceeding earlier but delayed despite knowing that respondent did not pay rent; (3) he lacked knowledge or notice that petitioner would bring a nonpayment proceeding against him; and (4) he will be prejudiced if petitioner prevails in this proceeding. (See e.g. Dwyer v Mazzola, 171 AD2d 726, 727 [2d Dept 1991, mem]; Dedvukaj v. Madonado, 115 Misc 2d 211, 214 [Civ Ct, Bronx County 1982].)

Respondent must meet all four elements to establish laches. If respondent satisfies this burden, the burden shifts to petitioner to show a reasonable excuse for the delay. (Dedvukaj, 115 Misc 2d at 214.) The court has the discretion to determine whether a claim is stale. In exercising its discretion to set out a time period before which a landlord may not collect arrears as a possessory judgment, the court considers the equities, not an artificial time limitation. (269 Assocs. v Yerkes, 113 Misc 2d 450, 454 [Civ Ct, NY County 1982].)

Both parties agree that respondent has established the first element to laches. Respondent's omission—not paying rent—has given rise to this nonpayment proceeding. At issue, then, is whether respondent has established the last three elements of laches.

Respondent has not met his burden to show the second element to laches—that petitioner had the opportunity to bring this proceeding but delayed despite having knowledge or notice of respondent's failure to pay use and occupancy. Respondent argues that petitioner had several opportunities during the holdover litigation to ask for use and occupancy.^[FN1] Petitioner knew that respondent was not paying rent. But petitioner did not delay in bringing this nonpayment proceeding. It was only after April 11, 2006—when the Court of Appeals denied petitioner's [*4]motion for leave to appeal—that petitioner had an opportunity to commence this nonpayment proceeding without forfeiting its right to continue its appeal or to challenge respondent's assertion of succession rights. (See e.g. Greenburger v Leary, 119 Misc 2d 358, 361-362 [Civ Ct, NY County 1983] [holding that landlord has right to complete holdover proceeding before accepting rent from tenant].) Soon after the Court of Appeals denied petitioner's motion for leave to appeal, petitioner brought this nonpayment proceeding. Respondent's tenancy would have been reinstated if, after commencing the holdover proceeding, petitioner had accepted use and occupancy; cashed respondent's two checks (covering July, August, September, and October 2005 rent) before the Court of Appeals denied petitioner's motion for leave to appeal; or commenced a nonpayment proceeding against respondent at any point . (RPL § 232 [c].) Petitioner's only option was to seek use and occupancy pendente lite. When it did so before the Appellate Division, the court denied petitioner's request. The only time petitioner cashed petitioner's checks for use and occupancy was after the Court of Appeals denied petitioner's motion for leave. Only then was the holdover proceeding over.

Respondent has also not proven the third element to laches—that he lacked knowledge or notice that petitioner would bring a nonpayment proceeding against him. Respondent's argument that petitioner's motive is to evict him instead of receiving money—use and occupancy—is unpersuasive. Petitioner put respondent on notice that it sought use and occupancy when it raised the issue in the original holdover petition. Similarly, respondent's argument that petitioner received higher rents from other apartments in the building and that respondent's rent did not matter to petitioner is irrelevant. Respondent was on notice that petitioner would one day assert its claim for use and occupancy. That day came when the Court of Appeals denied petitioner's leave to appeal and the holdover proceeding ended.

Respondent has further not proven the fourth element of laches—that he will be prejudiced if petitioner prevails in this proceeding. Respondent must show a change in circumstances making it inequitable for this court to grant petitioner's relief. (See Seligson v Weiss, 222 AD 634, 638 [1st Dept 1928, mem]). Respondent can establish prejudice by showing change of position, loss of evidence, or some other disadvantage resulting from the delay. (Thurmond v Thurmond, 155 AD2d 527, 529 [2d Dept 1989, mem]; Matter of Vickery v Vil. of Saugerties, 106 AD2d 721, 723 [3d Dept 1984, mem]; Glenesk v. Guidance Realty Corp., 36 AD2d 852, 853 [2d Dept 1971, mem].) This court must balance respondent's inability to pay $23,097.39 in arrears against respondent's obligation to have held in reserve an adequate amount to pay this debt: "The test of financial inability of one faced with an accumulated claim for money, should be balanced . . . against the obligation of the individual who owes money to reserve an adequate sum to cover the debt if and when a claim is made." (269 Assocs., 113 Misc 2d at 454.)

Respondent contends that he will be prejudiced if petitioner prevails. Respondent alleges that he has limited means; only recently, respondent asserts, has he been approved for Social Security disability benefits. Respondent argues that the arrears have became so monumental as virtually to guarantee his eviction. But respondent has not shown a change in circumstances. He [*5]acknowledges that he could not pay the rent in 2002, let alone the accumulated arrears in 2006. Unavailing is his argument that he had to use his money to pay for food, clothing, and utilities and thus that he could not save any money for use and occupancy. Respondent has not shown how he would be prejudiced if petitioner prevails. Indeed, respondent has lived rent free for approximately four years.

Had respondent met all four elements to laches—which he has not—the burden would shift to petitioner to show a reasonable excuse for the delay. A reasonable excuse for delay might exist when, before asserting a claim, a litigant waits for the outcome of an appeal in ongoing, related litigation. (GSL Enter., Inc. v Newlinger, NYLJ, May 24, 1996, at 25 col 6 [App Term, 1st Dept, per curiam]; United Artists v No. 731 Seventh Ave. Rest., 75 Misc 2d 717 passim [Civ Ct, NY County 1973].) Litigation between petitioner and respondent has been ongoing from June 17, 2002, when petitioner commenced the holdover proceeding, through April 11, 2006, when the Court of Appeals denied petitioner's leave to appeal. Petitioner waited for the outcome of the appeal before asserting his claim for use and occupancy. Under these circumstances, the court would find a reasonable excuse for petitioner's delay had the court reached this argument.

Respondent's motion for summary judgment is denied. None of the use and occupancy is subject to laches. Petitioner's request for $23,097.39 in use and occupancy from May 2002 through July 2006, is therefore all possessory.

The proceeding is adjourned for trial to September 28, 2006.

This opinion is the court's decision and order.

Dated: September 25, 2006

J.H.C.