270 E. 95 Props., LLC v. Kent

Decision Date29 July 2015
Docket Number2013-1976 K C
Citation18 N.Y.S.3d 260,49 Misc.3d 33,2015 N.Y. Slip Op. 25254
Parties270 E. 95 PROPERTIES, LLC, Appellant, v. Charles KENT, Tenant, and Luvina Kent, Respondent.
CourtNew York Supreme Court — Appellate Term

Law Offices of Scott D. Gross, Mineola (Michelle F. Hagler of counsel), for appellant.

Joan M. Beranbaum, New York City (Nora Ule Rose of counsel), for respondent.

PRESENT: PESCE, P.J., WESTON and SOLOMON, JJ.

Opinion

Appeal from an order of the Civil Court of the City of New York, Kings County (Jean T. Schneider, J.), entered June 3, 2013. The order granted a motion by Luvina Kent to dismiss the petition in a nonpayment summary proceeding.

ORDERED that the order is affirmed, without costs.

In this nonpayment proceeding, the petition alleges that the tenant of record, Charles Kent, owes monthly rent of $895.20 for the months of October, November and December 2012, a September 2012 balance of $858.24, and late and legal fees. Tenant's wife, Luvina Kent (occupant), answered (see RPAPL 743 [“any person in possession or claiming possession ... may answer”] ) and entered into stipulations with landlord's attorney, including one in which landlord's attorney acknowledged occupant's right to appear and to enter into agreements on her husband's behalf. Under these circumstances, landlord will not be heard to argue, as it seeks to do for the first time on appeal, that only occupant's husband, and not occupant, had standing to move to dismiss the petition.

In support of her motion to dismiss, occupant showed that landlord's rent ledger showed a missed payment in May 2009 and a partial payment in March 2010 and that the rest of the arrears sought for the subject rent-stabilized apartment accrued as the result of late and legal fees. Occupant argued, among other things, that the petition should be dismissed based upon laches. Landlord responded, among other things, that laches was unavailable because tenant's monthly rent bills showed the outstanding balance; that landlord was entitled to apply occupant's payments to the earliest arrears outstanding; and, in any event, that a successful laches defense results not in dismissal but in an award of a nonpossessory judgment. The Civil Court, treating occupant's motion as one for summary judgment and finding that only $878.47 of the amount sought by landlord was for rent arrears, granted the motion, essentially for the reasons put forward by occupant.

We affirm the dismissal on different grounds.

In our view, the affirmative defense of laches does not provide a basis for dismissal at this juncture. One of the...

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