This summary nonpayment proceeding was commenced by WEST 161, LLC

(Petitioner) and seeks to recover possession of Apartment 42 at 517 WEST 161ST STREET, NEW YORK, NY 10032 (Subject Premises) based on the allegation that, ROBERT REYNOLDS (Respondent) the rent stabilized tenant of record, has failed to pay rent due for the Subject Premises.

The petition is dated January 14, 2014, and seeks $18,070.88, in arrears at a current monthly rent of $619.02. Respondent filed an answer on March 3, 2014, alleging service of the petition was improper, a portion of the rent was paid, conditions in the Subject Premises that need repair, breach of warranty of habitability, laches, that the building was not properly [*2]registered and a general denial. The proceeding was originally returnable on March 11, 2014, and adjourned to April 2, 2014, for trial. On April 2, 2014, the proceeding was assigned to Part L for trial The trial commenced and concluded on that date, and the Court reserved decision.

In the years immediately prior to this proceeding, Petitioner had commenced three other non-payment proceedings, under Index Nos 91371/09, 80770/12, and 64909/13. The court reviewed the prior proceedings in part to determine if Respondent was permitted to assert a counterclaim going as far back as January 2010 as he requested at trial. The proceeding under 91371/09, was settled on November 19, 2009 the initial return date ^[FN1]. The stipulation provided for a final judgment in the amount of $7105.68, and the warrant of eviction issued on December 15, 2009. Two subsequent stipulations were entered on January 11, 2010, and March 23, 2010.

The second proceeding was under index number 80770/12. Petitioner issued a rent demand dated August 23, 2012, seeking $7672.54, in arrears from August 2011 to August 2012. The petition was dated September 18, 2012. Respondent filed an answer on October 5, 2012, alleging a portion of the rent had already been paid, that repairs from a prior proceeding had not been done, seeking an abatement for a breach of warranty of habitability, and asserting laches. The proceeding was initially returnable on October 16, 2012, and was adjourned for trial and an inspection by Department of Housing Preservation and Development (DHPD) to November 19, 2012. The inspection took place on October 23, 2012, and resulted in seven class "B" violations and three class "C" violations for conditions including missing carbon monoxide detector, painting and plastering, broken or defective surfaces on the walls and ceilings, defective marble saddle at the entrance to the bathroom, defective base cabinet in the kitchen, broken or defective window counter balances, a missing smoke detector, and mold. On January 29, 2013, the proceeding was transferred to the expediter's part for assignment to a trial judge. On March 28, 2013, a trial date was set for April 8, 2013. On April 8, 2013, Petitioner made an application that was denied and the proceeding was dismissed by the court.

The third proceeding was under 64909/13. Petitioner issued a rent demand dated April 9, 2013 seeking $12,499.70 in arrears for a period covering August 2011 through April 2013. The petition is dated April 22, 2013. Respondent filed an answer on May 13, 2013, seeking a traverse hearing, and asserting similar defenses including a claim for an abatement for breach of warranty of habitability. The proceeding was initially returnable May 21, 2013, and was adjourned for a traverse hearing to June 4, 2013. On June 4, 2013, the proceeding was discontinued, without prejudice, pursuant to a stipulation which did not set forth the reason for the discontinuance.

This proceeding was assigned to Part L for a traverse hearing on the service of the Notice of Petition and Petition and for trial on April 2, 2014. After an initial conference, Respondent acknowledged proper service of the petition and asserted he was seeking a traverse hearing on the rent demand. As Respondent had failed to raise the issue of service of the rend demand in [*3]his answer, and the transfer order issued by the Resolution Judge limited the traverse to service of the petition, the court did not conduct a traverse hearing and proceeded to a trial on the merits. Petitioner did establish valid service of a rent demand as part of its prima facie case, and the court noted that the affidavits of service for the rent demand were proper.

Petitioner called Pamela Paragon (Paragon) as its' first witness. Paragon is the property manager. Respondent is the tenant of record for the Subject Premises pursuant to a written lease most recently renewed on February 28, 2011 (Exhibit 1) for a period covering June 1, 2011 through May 31, 2013. Petitioner offered no lease agreement for any period after May 31, 2013, and no testimony was offered of an oral agreement between the parties after said date. Paragon testified that Respondent has rent arrears totaling $19,927.94, as evidenced by a rent ledger (Exhibit 2). The ledger shows that in September 2010, Respondent had a balance of $119.30, and the arrears accrued from that date forward. In 2010 Respondent failed to pay rent for November plus that balance. Respondent also failed to pay rent for October 2011 through January 2014 according to the ledger.

The Subject Building is properly registered with DHPD as a Multiple Dwelling, last renewed August 2013, which was prior to the commencement of the proceeding (Exhibit 3).

Petitioner is the owner of the Subject Building pursuant to the certified deed dated August 15, 2007 (Exhibit 4). The Subject Premises is subject to rent stabilization and is registered with the DHCR (Exhibit 5). The DHCR registrations show the legal registered rent for the Subject Premises is $619.02 as of June 2013, the same amount as of September 2012, and $592.36 as of August 1, 2011.

Petitioner moved to amend the petition to date, and Petitioner rested.

Respondent testified about the conditions in the Subject Premises. In support of these allegations, Respondent offered a print out from the DHPD website, dated March 11, 2014, showing thirty-nine open violations for the Subject Premises (Exhibit A). These violations include two class "A" violations for the bathroom door, one issued in January 2010 and another issued in August 2010; and class "A" violations for the walls in the foyer needing paint, broken or defective ceramic tiles on the floor in the bathroom, and a broken or defective medicine cabinet door in the bathroom.

The report includes forty-eight class "B" violations for conditions including, a missing carbon monoxide detector issued in February 2010, August 2010, and October 2012; missing smoke detector issued in February 2010, August 2010, and October 2012; defective wood floors issued in January 2010, February 2010 and August 2010; ceramic tiles in the bathroom issued in February 2010 and August 2010; mice infestation issued in February 2010 and August 2010; mold issued in January 2010 and August 2010; defective marble saddle in the bathroom; painting and plastering, defective window counter balance, defective cabinets in kitchen and bathroom, defective peep hole in entrance door, defective building entrance doors, broken defective kitchen counter top, defective electrical outlets, inadequate supply of gas, and broken apartment entrance door lock.

The report also includes one class "C" violation for an illegal fastening lockable slide bolt on the Subject Premises entrance door.

Respondent testified the violation for the defective marble saddle in the bathroom has been fixed, that the ceiling and wall in the bathroom was painted, and that the violation for inadequate supply of gas has been corrected. Respondent testified that these repairs were done no later then 2011. [*4]

Respondent offered photographs of the Subject Premises into evidence taken in 2010 or 2011 (Exhibits B 1-15, C 1- 35). The photos show peeling paint on the walls throughout the Subject Premises, and cracks in the walls and floor of the Subject Premises, and mold in the bathroom all of which Respondent testified remain outstanding through the date of the trial.

Respondent testified Petitioner was on notice of these conditions through the previous litigation between the parties, and has only made minor repairs during this time.

The court finds that Petitioner is limited to seeking arrears through May 2013 when the last lease expired. Petitioner offered no proof offered of an agreement to pay rent for any month after the expiration of Respondent's renewal lease on May 31, 2013. Generally, speaking it is well settled that a summary nonpayment proceeding must be predicated on an agreement to pay rent [RPAPL 711(2)]. There was no testimony of any renewal offer made after the expiration of the lease. Even if Petitioner had established such an offer, there could not be an automatically deemed renewal pursuant to 9 NYCRR § 2523.5(c)(2) (Samson Management LLC v Hubert 28 Misc 3d 29), and RPL §232-c is not applicable, even for a finding of a month to month tenancy, as that would require payment and acceptance of rent after the expiration of the lease, and in this case rent was neither offered nor accepted for any period after the lease expiration, nor was there any evidence of any express or implied agreement for any period after the expiration of the lease. While Respondent did not raise this issue as an affirmative defense, he is not obligated to do so as it is Petitioner's burden to prove an agreement to pay the rent sued for as part of its prima facie case.

Based on the foregoing the court finds that Petitioner is limited in seeking arrears in this summary proceeding to the period through May 31, 2013. The court finds that the total arrears due through said period is $12,473.04. This based on the balance of $711.66 due for September 2010, and November 2010, and 19 months of rent for the period of October 2011 through May 2013.

Real Property Law § 235-b requires landlords of a residential premises to make repairs and to keep the premises free from conditions that are dangerous or detrimental to the life health or safety of the tenants and occupants residing in the premises [Park West Management Corp. v. Mitchell, 47 NY2d 316 (1979)]. In determining the amount of the abatement, "the finder of fact must weigh the severity of the violation and duration of the conditions giving rise to the breach, as well as the effectiveness of steps taken by the landlord to abate those conditions (Id at p.9)."

The court finds the following conditions existed in the Subject Premises: broken or

broken plaster walls and ceiling throughout the apartment, with the exception of the bathroom,

missing carbon monoxide and smoke detectors, defective window in first room, defective

kitchen cabinet, defective wood floor throughout, mice infestation, defective bathroom cabinet, defective kitchen counter top, defective electrical outlets in first and second room, and mold. DHPD issued violations for these conditions, as early as 2010, and a reinspection in 2012, found the violations still existed. The violations establish that Petitioner was on notice of these conditions, and constitute prima facie evidence that these conditions existed at the Subject premises on the dates the violations were placed and continued through the date of the trial [DHPD v Living Waters Realty Inc., 14 Misc 3d 484; Administrative Code of the City of New York §27-2115(f)(7)]. Respondent testified that these conditions existed in the Subject Premises since 2010, and that an abatement was sought from January 2010 forward.

Petitioner offered no evidence or testimony about any attempts to make the repairs or [*5]

correct the violations. Respondent testified some minor repairs were made in either 2010 or

2011. Petitioner did not present evidence or testimony to admit or deny this allegation. At the time the DHPD inspection report was printed, March 11, 2014, none of the violations were certified as corrected, but Respondent acknowledged at trial three violations had been corrected.

The Court finds the following conditions warranting an abatement existed at least

from January 2010 until April 2014: mold in the second room, defective entrance door lock,

broken plaster walls and ceiling throughout the apartment, defective wood floors through out the premises, defective outlets, and defective bathroom door.

The Court finds the following additional conditions warranting an abatement existed at least from February 2010 until April 2014: missing carbon monoxide and smoke detectors, mice, broken bathroom tiles, and a broken bathroom cabinet.

The Court finds the following conditions warranting an abatement and existed at least

from August 2010 until April 2014: defective kitchen counter top, defective kitchen cabinet, defective window in first room, broken or defective peep hole in entrance door, and mold in the bathroom.

Based on the foregoing, the Court finds that Respondent is entitled to a 20% abatement

for the period of January 2010 through August 2010, and 25% abatement for the period of September 2010 through May 2013.

The DHPD violations that were placed on the Subject Premises since January 2010 have not be certified as corrected, and Petitioner failed to show any proof of attempts to gain access to the Subject Premises to make repairs. Petitioner is directed to correct all outstanding violations within 30 days. Access shall be arranged between the parties.

The court further finds that Respondent failed to establish a defense of laches. In order for laches to apply, Respondent must show an unexplained delay by Petitioner in seeking the arrears and prejudice to Respondent because of that delay (Karagiannis v. Nasar/Hyer 35 Misc 3d 37). Respondent offered proof of neither element at trial. Through the prior proceedings Respondent was on notice that Petitioner alleged rent was due and was pursuing the claim. Respondent has failed to establish any intentional delay or prejudice. Laches is an affirmative defense. It is Respondent's burden to prove, (Dwyer v. Mazzola, 171 AD2d 726,727) and Respondent failed to meet his burden.

Based on the foregoing, the Court finds that Respondent is entitled to an abatement totaling $5994.70 [20% of January 2010 - August 2010 @ $592.36/month = $947.77 ] + [25% of September 2010 - May 2011 @ $592.36/month = $1332.81] + [25% of June 2011 - May 2013 @ 619.02/month = $3714.12]

Petitioner established entitlement to $12,473.04 unpaid in arrears through May 2013, subtracting the abatement, leaves $6478.34 remaining due through May 2013. Petitioner is awarded a final judgment for $6478.34, issuance of the warrant shall be stayed five days for payment.^[FN2] [*6]

This constitutes the decision and order of this Court.

Dated: New York, New York

April 7, 2014

Hon. Sabrina B. Kraus