Respondent moves to dismiss this nonpayment proceeding on statute-of-limitations grounds and for summary judgment on the basis of laches.

Petitioner alleges that respondent owes $6939.63 in rent from January 2000 through January 2008. Respondent is an elderly woman on a limited income. In 1998, she applied for and began receiving Senior Citizens Rent Increase Exemption (SCRIE) benefits. New York City's SCRIE program helps eligible seniors by paying for rent increases. SCRIE gives landlords a dollar-for-dollar property-tax-abatement credit to make up for the rent tenants are exempted from paying. The Department for the Aging (DFTA) authorizes these tax credits and transfers them electronically to the building owner's property-tax account at the Department of Finance. (NYC Dept of Aging, Section on Rent Assistance, SCRIE Made Easy, What Landlords Need to Know, How Does the SCRIE Program Work?, available at http://www.nyc.gov/html/dfta/html/scrie/scrie.shtml [accessed on Aug. 11, 2008].)

The SCRIE benefit that petitioner deducted from respondent's rent was $67.32 from January 2000 to May 2000 and $65.68 from June 2000 to December 2000. Petitioner received tax credits in accordance with respondent's SCRIE benefits. Respondent's SCRIE benefits ended on December 31, 1999. She did not reapply for SCRIE. Petitioner, however, continued to bill respondent the rent amount as if SCRIE were being credited even after her SCRIE benefits ended. Respondent paid her monthly rent according to the rent bill petitioner gave her. [*2]

In January 2008, petitioner told respondent that she owed $6380.80 in rent and arrears because she failed to re-certify her SCRIE benefits after December 31, 1999. In 2008, respondent received a letter from the DFTA stating that her SCRIE benefits were revoked effective January 1, 2000. DFTA enclosed a new SCRIE application and a notice that no retroactive benefits could be given to respondent.

Respondent argues that the statute of limitations has expired. If so, the arrears accrued before January 2002 may not be recovered. The court finds that the six-year statute of limitations partly bars petitioner's nonpayment claim. A six-year statute of limitations exists for contract obligations. (CPLR 213 [2]; Westminster Props. v Kass, 163 Misc 2d 773, 774 [App Term, 1st Dept 1995 per curiam].) The statute of limitations begins to run when a petition is filed. (Butler v Gibbons, 173 AD2d 352, 353 [1st Dept 1991 mem].) Here, the statute of limitations began on April 28, 2008, when petitioner filed the petition and began this proceeding. Any rent due from respondent before April 28, 2002, is barred by the six-year statute of limitations.

Respondent also moves for summary judgment. In a motion for summary judgment, the movant bears the burden of establishing a prima facie case that might entitle the movant to a judgment as a matter of law. (Zuckerman v City of NY, 49 NY2d 557, 562 [1980].) To defeat a summary-judgement motion, the nonmoving party must show issues of material fact exist that warrant a trial. (CPLR 3212 [b].)

Laches bar much of petitioner's nonpayment claim. The laches doctrine protects a tenant when the landlord "unreasonably or inexcusably delays in undertaking to enforce rights, with resulting prejudice to the opposing party." (Marriott v Shaw, 151 Misc 2d 938, 940 [Hous Part, Civ Ct, Kings County 1991], citing Dante v 310 Assocs., 121 AD2d 332, 334 [1st Dept 1986 mem].)

Four elements must be satisfied for laches to apply. (See e.g. R.M.H Estates v Hampshire, 13 Misc 3d 1222(A), 2006 NY Slip Op 51941[U], 2006 WL 2944655, 2006 NY Misc LEXIS 2904 [Hous Part, Civ Ct, NY County 2006], citing Dwyer v Mazzola, 171 A D 2d 726, 727 [2d Dept 1991, mem].) First, there must be a cause of action in which the court can grant a remedy. Second, the landlord must have had an opportunity to assert a claim earlier but delayed without explanation or reason. Third, the tenant must have been unaware that a suit is being initiated. Fourth, the tenant must show that injury or prejudice will result if laches does not bar the lawsuit. To establish laches, the tenant must satisfy the initial burden of proving the four elements. Then the burden shifts to the landlord to explain the delay.

Respondent has satisfied her burden. The first element of laches is met because not paying rent is a cause of action.

The second element is met because petitioner delayed in asserting its nonpayment claim. Documents petitioner offered in opposition to respondent's motion and the subpoenaed DFTA documents show that petitioner received tax credits from SCRIE after December 31, 1999. [*3]Petitioner was never required to reimburse the program. SCRIE simply informed petitioner that it had terminated her benefits. Because petitioner never received from SCRIE during 2000 through 2008, petitioner should have known it was receiving no credits and thus have commenced a proceeding against respondent earlier. Petitioner erred in its bookkeeping.

The third element of laches is satisfied because respondent did not know or have reason to know that petitioner would commence a proceeding when petitioner discovered its bookkeeping error. Although respondent did not re-certify her SCRIE benefits after 2000, she paid her monthly rent bills according to the petitioner's incorrect rent statements. Petitioner had reason to know that SCRIE benefits had terminated: Petitioner received tax credits from the SCRIE program. It was the petitioner's responsibility to make sure it received tax credits when it deducted SCRIE benefits from respondent's monthly rent.

The fourth element of laches is satisfied because respondent would suffer injury and prejudice if she is compelled to pay the rental arrears. Respondent has a limited income. She is not at fault for petitioner's bookkeeping error and would endure a burden if she were forced to pay the thousands of dollars that have accrued since April 2002.

The court must determine whether rent that accrued within the statute-of-limitation period is subject to possessory judgment or solely non-possessory judgment. Using its discretion and taking the equities into account, the court determines that petitioner can seek at trial a possessory judgment for rent arrears that accumulated from one year before the petition was filed, or rent owed from April 28, 2007, to date. Any additional rent petitioner alleges respondent owes within the statute-of-limitations period may be sought at trial but is subject to a non-possessory judgment. A trial will determine whether petitioner owes the arrears, but petitioner may not profit from its bookkeeping errors by obtaining an eviction for arrears other than those that have accrued since April 2007.

This proceeding is adjourned for trial to September 15, 2008.

This opinion is the court's decision and order.

Dated: August 11, 2008

J.H.C.