Lucy Newman Helps Senior Citizen Keep Her Home of 30 Years
FRIDAY, APRIL 24, 2009

Lucy Newman, a staff attorney in the Bronx Neighborhood Office of the Civil Practice, prevented the eviction of a 73-year-old woman from her home of 30 years in the Fordham Heights section of The Bronx. Civil Court Judge Jaya K. Madhavan supported Lucy Newman's laches defense and dismissed the eviction proceedings, ruling that the landlord's delay in initiating the eviction proceedings constituted sufficient prejudice. "To permit petitioner to apply respondent's payments to her past arrears to support its possessory claim would cause respondent - who is elderly and indigent - to lose her home of over 30 years," Judge Madhavan wrote. "The court cannot countenance such a patently unjust result."

 

The New York Law Journal
Landlord's Delay Prompts Court to Dismiss Eviction Proceeding
Mark Fass
04-21-2009

A Bronx judge has dismissed an eviction proceeding, holding that the landlord's 23-month delay in initiating the action constituted sufficient prejudice to support the tenant's laches defense.

Civil Court Judge Jaya K. Madhavan (See Profile) ruled that the landlord's application of the tenant's monthly checks toward her ongoing balance rather than toward her rent, and its concomitant contention that the arrears were therefore current and not "stale," constituted unjust bookkeeping.

"To permit petitioner to apply respondent's payments to her past arrears to support its possessory claim would cause respondent - who is elderly and indigent - to lose her home of over 30 years," Judge Madhavan wrote in A&E Tiebout Realty v. Johnson, 53356/08. "The court cannot countenance such a patently unjust result."

The Bronx Civil Court decision will be published Friday.

Landlord A&E Tiebout Realty initiated the present proceeding against tenant Lois Johnson in September 2008, seeking alleged arrears of $1,538 for Ms. Johnson's Tiebout Avenue apartment. A&E sought rent for the two previous months, along with unpaid washing machine and air conditioner fees.

The company also sought Ms. Johnson's eviction, based on the arrears.

Ms. Johnson, a 73-year-old Section 8 tenant, has lived in the Fordham Heights apartment since the 1970s. She failed to pay her share of the rent - $179.30 - five times between December 2006 and October 2007.

In her answer, Ms. Johnson moved for summary judgment on the grounds of laches - i.e., that the landlord's delay in initiating the action caused her significant injury and prejudice.

A&E denied any delay, arguing that although Ms. Johnson had submitted the exact amount of her monthly rent each month since October 2007, the company had applied each check to her arrears, not the current rent. Therefore, A&E contended, Ms. Johnson's arrears remained current, instead of "stale."

The general rule, the company noted, is that a debtor may direct how payments are to be applied, but if she fails to do so the creditor may apply the payments as it sees fit.

Judge Madhavan found several reasons that the rule did not apply in the present case.

The form of Ms. Johnson's payments - monthly, at the beginning of the month and for the amount of her rent - implied an intent for the funds to be used for her rent, not her arrears, the judge wrote.

Laches, which requires a "disadvantage resulting from the delay," also precluded the landlord's accounting, the court held.

"Petitioner's unreasonable delay in commencing this proceeding has left respondent unable to pay her alleged arrears for which she may be evicted from her home of over three decades," Judge Madhavan wrote. "Thus, this element of laches has been amply met as well."

Lucy Newman of the Bronx office of the Legal Aid Society represented Ms. Johnson.

"They tried to argue 'first in, first out,' but that would [only] make sense if [Ms. Johnson], say, missed those five months and only made two payments since," Ms. Newman said.

Isidore Whitfield Scipio of Gutman, Mintz, Baker & Sonnenfeldt, who represented A&E, could not be reached for comment.

Mark.Fass@incisivemedia.com