Defendant maintains that plaintiffs' refusal to allow the repairs to proceed precludes their entitlement to damages. Lastly, defendant asserts that it is entitled to perform repairs within its business judgment.
In reply, plaintiffs argue that the branch of its motion seeking summary judgment on its second cause of action is not barred by the "one motion rule" because they allege that they have made a showing of newly discovered evidence, specifically, the deposition testimony of Uram and defendant's former managing agent, Harry Smith (Smith).[FN2]
Plaintiffs argue that defendant's assertion that it was acting in good faith is irrelevant to its obligation to provide plaintiff with a habitable residence or to repair the unit in an expeditious manner. Moreover, plaintiffs contend that the scope of the work that defendant plans is inadequate to correct the [*5]defective conditions in the leaking exterior walls and that defendant cannot act in a discriminatory manner so that, in allegedly repairing the unit, it makes the interior rooms and terraces smaller than they were when Goldstone became the proprietary lessee. In addition, plaintiffs maintain that the business judgment rule does not apply to situations in which the directors act in bad faith or in a discriminatory manner.
Plaintiffs also aver that they have not thwarted defendant's efforts to repair the unit, because they have never denied access to defendant to effectuate the remediation. Further, plaintiffs dispute defendant's contention that their damages are limited to rent abatement, which relief has already been granted.
By agreement of the parties, Goldstone has been permitted to submit a sur-reply in further support of her motion for partial summary judgment.