In the instant motion, plaintiffs provide the deposition testimony of Uram and Rohn, taken after the earlier motion was filed and decided, both of which evidence that defendant had made the decision in 2007 not to make any further repairs in plaintiffs' unit based on a fear of potential litigation and the fact that plaintiffs were not residing in the apartment and, therefore, presumably would not be injured by not having the work done.
In this court's earlier decision, this relief sought by plaintiffs was rejected, even though the court found that it was "uncontroverted that the flooding and mold in Penthouse B render the unit uninhabitable," because plaintiffs failed to provide evidence that defendant's efforts at remediation were unreasonable. In affirming this portion of this court's [*7]determination, although holding that Goldstone was entitled to a 100% abatement until the unit "is restored to a habitable condition (73 AD3d 506, 507), the Appellate Division stated that questions of fact existed as to whether defendant was making the repairs in a timely manner.
The new evidence provided by plaintiffs, that defendant had determined to make no repairs since 2007, is sufficient to demonstrate that defendant's actions have unjustifiably caused the unit to remain in an uninhabitable condition for an unreasonable period of time, warranting plaintiffs being granted summary judgment on the issue of liability on their second cause of action. Defendants present no evidence to raise an issue of fact in response to plaintiffs' prima facie showing.