Upon the foregoing papers and for the following reasons, the motion by Respondents-Tenants Lucy Acosta and Carlos Pizarro, Sr. ("Tenants"), for leave to amend their Answer and for summary judgment, is granted in part and denied in part.

By Notice of Petition and Petition filed May 17, 2013, Petitioner-Landlord Layla Associates, LLC ("Landlord") commenced the instant nonpayment summary proceeding against Tenants, seeking the payment of rent arrears amounting to $18,423.41 for premises located at 2641 Marion Avenue, Apartment 1H, in Bronx, New York, which premises rent for $857.51 per [*2]month and are subject to the Rent Stabilization Laws of 1969. According to the Petition, Tenants have failed to pay rent for over two years, accumulating arrears prior to June 2012 in the sum of $7,998.29, and after June 2012 thru May 2013 of $10,290.12, plus $135 in legal fees. On May 30, 2013, Tenants filed an Answer asserting that they tried to pay the rent but were refused.

By Notice of Motion returnable November 8, 2013, Tenants now move, pursuant to CPLR 3025(b), for leave to amend their Answer to include the affirmative defense of laches, alleging that Landlord improperly delayed in commencing this proceeding for stale rental arrears from October 2011, thereby allowing arrears to accumulate to $18,423.41 through May 2013, and causing them severe prejudice. In support of their motion, Tenants particularize that they have been living at the subject premises since 1978 for over 35 years, that they have had employment throughout those years, paid their rent, raised their six children at the premises and put them through college. According to them, in 2010, there was an incident where the police were called to the apartment as a result of drugs being kept there by their son, Carlos, without their knowledge or permission. Their son eventually pled guilty to criminal possession of controlled substances.

That incident was the basis for an October 2011 illegal drug holdover proceeding (Index No. 54074/2011) commenced by Landlord against the Tenants in the Bronx County Housing Court, seeking their eviction. While that proceeding culminated in its dismissal as time-barred in August 2012, Tenants allege that they attempted to pay the monthly rent on several occasions during the pendency of those proceedings, but that Landlord repeatedly refused to accept their payments. Tenants additionally affirm that they told Landlord about the dismissal in August 2012, again offering the rent owed, but to no avail.

Then, with a due date of March 1, 2013, Landlord presented Tenants with a bill claiming that $16,573.39 were owed in rent arrears. Shortly thereafter, the instant nonpayment proceeding against Tenants was commenced. Although Tenants promptly answered the proceedings, now they want to amend their Answer to include a defense of laches in that Landlord "has harmed [them] by waiting too long to bring this case" and should be precluded from asking for the stale rent arrears presently. In opposition, Landlord denies that Tenant ever offered to pay the rent and argues that it only received notice of the dismissal of the prior proceeding by counsel in March 2013, and that it could not have commenced a nonpayment proceeding during the pendency of the drug holdover because that would have vitiated the Notice of Termination and reinstated the tenancy. This Court disagrees.

It is well settled that leave to amend a pleading "shall be freely given upon such terms as may be just" (CPLR 3025[b]; see Civil Court Act § 909). "In the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit" (Lucido v Mancuso, 49 AD3d 220 [2008], appeal withdrawn 12 NY3d 804 [2009], quoting G.K. Alan Assoc., Inc. v Lazzari, 44 AD3d 95, 99 [2007]; see Trataros Constr., Inc. v New York City Hous. Auth., 34 AD3d 451, 452-453 [2006]). Here, Tenants have sufficiently established an entitlement to amend their Answer to add their laches defense. In light of the allegations and the possible forfeiture of the premises herein, Tenant should be permitted to raise all applicable defenses which are not "palpably insufficient or patently devoid of merit."

Turning to the reminder of the motion, summary judgment may be awarded on a laches defense, "which is an equitable doctrine based on fairness" (Building Mgt. Co. Inc. v Bonifacio, 25 Misc 3d 1233[A], 2009 NY Slip Op 52398[U] [NYC Civ Ct 2009]; see Marriott v Shaw, 151 [*3]Misc 2d 938, 940 [NYC Civ Ct 1991]). The four basic elements of laches are that: "(1) petitioner must have a valid claim; (2) petitioner must have delayed in asserting claim without good cause; (3) there must be lack of notice to respondent that petitioner would pursue claim; [and] (4) respondent must be prejudiced" (Scherer, Residential Landlord-Tenant Law in New York § 12:28, at 809 [2012]; see Dwyer v Mazzola, 171 AD2d 726, 727 [2d Dept 1991]). Courts have the discretion to consider the equities to ascertain "when a claim [for rent] is stale" (Rota Holding Corp. No. 2 v Shea, 21 Misc 3d 1127[A], 2008 NY Slip Op 52250[U] [NYC Civ Ct 2008]). When a tenant establishes the elements of laches, the landlord must establish a reasonable excuse for the delay or be barred from recovering a possessory judgment for arrears found to be stale (1560-80 Pelham Pkwy. Assocs. v Errico, 177 Misc 2d 947, 948 [AT 1st 1998], citing City of New York v Betancourt, 79 Misc 2d 907, 908 [AT 1st 1974]).

Applying the foregoing principles to the matter at bar, Tenants have sufficiently established a prima facie case of laches as to certain of the rent arrears. The first element of laches is easily satisfied as both parties agree that Tenant has not paid the rent for over two years. The second prong, protracted delay, has been satisfied by Landlord's delay of more than two years in bringing this proceeding and that no impediment existed to an earlier lawsuit (see Marriott v Shaw, 151 Misc 2d at 940; Rodríguez v Torres, NYLJ, Jan. 22, 2003, at 22, col 1 [Kings Civ Ct]). The third prong of lack of notice is satisfied by the fact that no rent was demanded and no prior proceeding for rent commenced. Finally, the fourth prong of prejudice has been held satisfied by evidence that the Tenants have a limited income and lack significant resources to pay the large rental arrears now accumulated (see Marriott v Shaw, 151 Misc 2dat 941-942).

In opposition, Landlord fails to provide a reasonable excuse for its delay in bringing the instant nonpayment proceeding against Tenants for arrears. To justify its delay in bringing this proceeding, Landlord notes that the drug holdover proceeding was pending during the alleged period of unpaid rent and the acceptance of rent would vitiate the predicate notice for that proceeding. However, there is also evidence that Landlord rejected Tenants' rent payment at least on four occasions in 2011, even though permission could have been sought from the court for interim payments without prejudice. Given this history, the Court finds that Landlord may not rely on the prior proceeding to justify its delay in seeking rent or use and occupancy shortly after the August 2012 dismissal.

In accordance with the foregoing, Tenants' motion is granted only to the extent that their proposed Answer is deemed filed nunc pro tunc. Summary judgment is partially granted as to their laches defense only to the extent that, using its discretion and taking the extant equities into account, this Court determines that Landlord may seek a possessory judgment only for rent arrears that accumulated after the prior proceeding was terminated, August 2012 to May 2013, amounting to $10,290.12, plus any current arrears accumulated since the commencement of this proceeding. Given the six-year statute of limitation applicable herein, however, Landlord may seek to obtain the remainder of the arrears after trial, but for a money-only or non-possessory judgment (see Building Mgt. Co. Inc. v Bonifacio, 25 Misc 3d at 1233[A]).

The matter is adjourned to January 10, 2014 at 9:30 a.m. for all purposes. The foregoing constitutes the decision and order of the Court.

E N T E R:

[*4]Dated:Bronx, New York

December 12, 2013

J.H.C.