Petitioner commenced this nonpayment proceeding in September 2010 seeking repossession of the residential premises and a possessory judgment in the amount of $1,850.80 (one thousand eight hundred fifty dollars and eighty cents) which represents rental arrears from July 2010 through September 2010. The petition was amended through October 2010 for a total claimed due of $2,376.56. The tenancy is subject the ETPA and New York State Division of Housing and Community Renewal (DHCR) regulations.

On October 18, 2010, both parties appeared, wherein respondent argued that rent arrearage in excess of six months old should be dismissed as stale rent. The petitioner opposed the application, arguing that it was permissible for the petitioner-landlord to apply the respondent's most recent payments to her oldest rent arrears. Based upon the arguments of the parties, the Court directed the parties to submit their arguments in writing with documentation establishing a prima facie case.

At the request of the Court, the respondent has submitted a pre-trial [*2]memorandum of law arguing that the rents alleged to be due in the petition in excess of six months are stale and should be dismissed and that petitioner failed to issue a rent demand that asserted threat of legal action due to rental arrears alleged to be owed from October 2008 through September 2010 prior to instituting this proceeding. Respondent's counsel argues that petitioner is not applying respondent's most recent rental payments to months in which they were received, but to arrears that have accumulated as far back as October 2008 and that accounting practice is detrimental to the respondent's ability to maintain her tenancy. Respondent affirms that she owes $1,252.42, the total arrears accrued in the 6 months before the commencement of this action.

The petitioner also filed a Memorandum of Law. Petitioner opposes the stale rent claims and argues that the respondent must first prove her laches defense. Petitioner maintains that it had not unreasonably delayed in bringing the proceeding and that respondent was served with the petition only two month's after her default.

Petitioner claims that it is standard accounting practice for management companies to use the "First In, First Out" method, thereby applying rent payments to the oldest rent due not to the months for which they were paid.

"Under the laches doctrine, equitable relief is barred where a party unreasonably or inexcusably delays in undertaking to enforce rights, with resulting prejudice to the opposing party" (Marriott v Shaw, 151 Misc 2d 938 (Civ Ct Kings Co. 1991)(citing Dante v 310 Assoc., 121 AD2d 332 (1st Dept 1986; 75 NY Jur 2d, Limitations and Laches, § 330 (1989)). The tenant initially bears the burden of proving four conditions:

1) conduct on the part of the defendant, or of one under whom he claims, giving rise to the situation of which complaint is made and for which the complainant seeks a remedy; (2) delay in asserting the complainant's rights, the complainant having had knowledge or notice of the defendant's conduct and having been afforded an opportunity to institute a suit; (3) lack of knowledge or notice on the part of the defendant that the complainant would assert the right on which he bases suit; and (4) injury or prejudice to the defendant in the event that relief is accorded to the complainant or that the suit is not barred (NY Jur 2d, Limitations and Laches § 333 (1989)).

A landlord's protracted delay in commencing a summary proceeding may prejudice a tenant, in that as a result of the delay she does not have resources to pay the large amount of arrears accumulated (See Marriott v Shaw, supra). It is well settled that where a landlord fails for a substantial period of time to avail himself of a summary proceeding to the detriment of the tenant, he is no longer entitled to summary relief as to the stale rent claims, but only entitled to possessory judgment for rent arrears for the six months within the commencement of the summary proceeding (City fo New York v Bentancourt, 79 Misc 2d 907 (1st Dept. 1974); 28 Market Street Corp. V Gallo, supra. As to the stale rent, the proceeding will be deemed an action upon which a money judgment will issue, unenforceable by means of a warrant of eviction (Levister Redevelopment Co., LLC, supra; 9-10 Alden Place v Chen, supra)).

Nevertheless, the Court finds that the amount due cannot be determined summarily based upon the papers submitted. The Court will determine after trial what rent, if any, is stale and whether respondent has proven laches.

The parties are directed to appear on May 24, 2011 at 1:30 pm for a hearing on the matter. The landlord shall provide an accounting of payments received from respondent. Respondent shall provide proof of payments.

This constitutes the Decision and Order of this Court.

Dated:May 10, 2011

Mount Vernon, New York

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HON. ADAM SEIDEN

Associate City Judge of Mount Vernon