To establish a defense of laches, the tenant must show (1) conduct on the part of the tenant giving rise to the situation of which landlord’s complaint is made and for which the landlord seeks a remedy; (2) delay in asserting the landlord’s rights, the landlord having had knowledge or notice of the tenant’s conduct and having been afforded an opportunity to institute a suit; (3) lack of knowledge or notice on the part of the tenant that the landlord would assert the right on which he bases suit; and (4) injury or prejudice to the tenant in the event that relief is accorded to the landlord or that the suit is not barred….

Here, the landlord had delayed in asserting the claim for water damages and the tenant had no notice that the landlord would seek to collect such charges. The court found that “the prejudice to the tenant in asserting a belated claim for water charges is palpable.” The tenant had “entered into the 2016 lease amendment that was intended to resolve its future obligations to its landlord.” The terms of the amendment included “a compensatory payment and a rent abatement.” The court opined at that time, that the tenant “had reason to believe that its only obligation to its landlord was the payment of electric charges from May 1 through August 31, 2017” and that obligation was “provided for in the amendment.” The amendment did not mention “water charges, which presumably would have been a subject of negotiation and explicit treatment if the landlord had made known any intention to bill for them.” The court held that the landlord’s “failure to bill for these charges for over three years prejudiced [tenant’s] negotiation of the lease amendment” and therefore, “[landlord’s] attempt to recover stale rent for water charges is barred by laches.” The court further found that there was no agreement between the parties that the tenant would pay the landlord $600 per month for use of the parking lot after April 1. The court believed the tenant’s testimony that it rejected the landlord’s offer to extend the agreement at an increased rate, and that it took steps to discourage his customers from using the subject parking space. It also appeared that the landlord had not taken any steps to prevent use of the parking space by anyone. The court held that absent an agreement, the landlord cannot recover rent or other payment for the period beginning April 1. As for parking charges for January through March., the parties had apparently agreed to a payment of $400 a month until April 1 and the tenant had paid such amount since lease inception. The court then stated that because of the court’s “limited jurisdiction in a summary proceeding,” the landlord “may not recover rent or additional rent for items not specified in a written lease.” The landlord had argued that there was “an oral modification of a contract” which had been “performed by the parties.” The court opined that such legal theory did not impact “this court’s jurisdiction,” the court lacked jurisdiction in a summary proceeding “to award damages for failure to pay parking charges not included in the lease” and the court denied the petition in its entirety. Lumiram Dev. v. Empire State Crossfit, Town Justice Court, Westchester Co., CV-17090014, decided Oct. 24, 2017, Meister, J.

Land Use—Environmental—Amendment to Storm Water Management System—Supplemental Environmental Impact Statement Not Required—Complaint Dismissed—Lack of Standing—Expert Affidavit Lacked Professional Background and Credentials

The petitioners/plaintiffs (petitioners) commenced a “hybrid Article 78/plenary action,” (action) seeking, inter alia, an order annulling a March 7, 2017 resolution of the respondent City Planning Board (planning board), which, inter alia, “approved Phase Two of a Planned Unit Development (PUD).” The planning board, its municipal co-respondents (city) and the co-respondent developer moved to dismiss the action. The court dismissed the complaint, based upon the petitioners’ lack of standing. This litigation involved a large construction project (project). The resolution found that the project had “met all necessary environmental thresholds, and that an amendment (amendment) to the stormwater management system”, (storm water system), “would not result in any significant adverse environmental impact.” The petitioners’ main argument was that the amendment “is a significant change and, pursuant to the State Environmental Quality Review Act (SEQRA), a Supplemental Environmental Impact Statement (SEIS) is required.” With respect to whether the petitioners had standing, the court explained:

Whether a party is a proper party to an adjudication is an issue that must be decided at the outset of the litigation…. [T]he Court of Appeals…stated: “…a person who can prove that he or she uses and enjoys a natural resource more than most other members of the public has standing under [SEQRA] to challenge government actions that threaten that resource”…. the court [stated] “…[W]e do not suggest that standing in environmental cases is automatic, or can be met by perfunctory allegations of harm. Plaintiffs must…allege, [and if the issue is disputed] must prove, that their injury is real and different from the injury most members of the public face.”

The organizational and individual petitioners described themselves as “a ‘group of concerned Long Islanders who have joined together to fight the overdevelopment’ of the project.” They alleged that “members of [their organization] ‘enjoy repeated use of the land surrounding the waterfront, enjoy repeated use of the beaches, and enjoy repeated use of the waterways abutting the Project Site…and utilize the public areas and amenities, including the boardwalk,…, dog park, waterways and attend…events and concerts at the beach within five hundred (500) feet of the site, within one thousand (1,000) feet of the site, within view of the site and/or within audible distance of the site.” The court found that “[t]hese general statements” did not confer standing in this matter. The petitioners’ had not indicated that they “use the waterfront,…more frequently or with any greater…concern than any other person with…access to the same resources.’” The individual petitioners failed to establish that “they live close enough to the project to suffer direct harm….” The court held that even if the petitioners had been standing, “the action would…be dismissed on its merits.” The respondents met all of the SEQRA requirements and merely because an amendment was made, SEIS was “not automatically triggered.” The planning board took the required “hard look” at the amendment and determined “…there be no adverse environmental impacts, but to the contrary the change would have a positive effect.” The respondents had “changed the stormwater…system from an ‘infiltration’ system to a ‘closed system.’” Both systems involved rain water flowing “into…local waterways.” The infiltration system cleansed rain water by directing the rain water “to run through subsurface soils.” The closed system directs storm water “into a filtering system.” The court did not credit petitioners’ expert affidavit and report. The expert failed “to explain his background and credentials.” The petitioners, on reply, sought to offer a curriculum vitae (CV). By offering the CV only on reply, respondents could not compare “his credentials with his opinion.” The court also did “not see how…his past experience, impressive as it may be,” involved expertise on “the environmental impact of stormwater, stormwater design and technology.” Many of his opinions were “conclusory and based upon speculation.” The city’s expert had credentials with respect to storm water system requirements and technology. The city expert explained “why a SEIS was not necessary and how the closed system actually provides more protection for the environment, not less.” Currently, the “rain runoff runs straight into the…waterways completely untreated.” The project site had “significant past environmental contamination,” and “an infiltration system could merely direct stormwater to run through subsurface soils that may still be contaminated. The closed system alleviates this concern.” The court rejected the petitioners’ additional arguments and dismissed the complaint, based upon the petitioners’ lack of standing. Committee for a Sustainable Waterfront v. Planning Board of The City of Glen Cove, 1948/17, NYLJ 1202801059696, at *1 (Sup., NA, Decided Oct. 16, 2017), McCormack, J. Scott E. Mollen is a partner at Herrick, Feinstein and an adjunct professor at St. John’s University School of Law.