Preview
INDEX NO. 61029/2023
NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 01/29/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
---------------------------------------------------------------X
TRICIA S. LINDSAY,
Index No: 61029/2023
Plaintiff’s,
NOTICE OF
-against- APPEAL
GRAMATAN MANAGEMENT INC. and
ESPLANADE GARDENS TENANTS CORP.,
Defendants.
---------------------------------------------------------------X
PLEASE TAKE NOTICE that defendants Gramatan Management Inc. and Esplanade Gardens
Tenants Corp., by their counsel, Harris Beach PLLC, appeal to the Appellate Division, Second
Judicial Department from an order of the Supreme Court, Nassau County by Justice David F.
Everett dated January 4, 2024 and entered on January 5, 2024.
PLEASE TAKE FURTHER NOTICE that this appeal is from the whole order and each part of
it that aggrieved Defendants.
Dated: New York, New York
January 29, 2024
______________________________
By: Andre J. Major, Esq.
Brendan P. Hall, Esq.
Harris Beach PLLC
100 Wall Street, 23rd Floor
New York, New York 10005
(212) 687-0100
amajor@harrisbeach.com
bhall@harrisbeach.com
Counsel for Defendants
Gramatan Management Inc.
Esplanade Gardens Tenants Corp.
To: Plaintiff via NYSCEF
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January 4, 2024
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FILED : WESTCHESTER COUNTY CLERK 01/29/2024 03:17
INDEX
INDEX NO.
NO. 61029/2023
61029/2023
PN|
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 84
83 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 01/29/2024
01/29/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
---------------------------------------------------------------X
TRICIA S. LINDSAY,
Index No: 61029/2023
Plaintiff's,
NOTICE OF
-against- ENTRY
GRAMATAN MANAGEMENT INC. and
ESPLANADE GARDENS TENANTS CORP.,
Defendants.
---------------------------------------------------------------X
PLEASE TAKE NOTICE that the annexed order is a true and accurate copy of an order by
Justice David F. Everett dated January 4, 2024, which was entered into the Westchester County
Clerk's Office on January 5, 2024.
Dated: New York, New York
January 29, 2024
By: Andre J. jor, Esq.
Brendan P. Hall, Esq.
Harris Beach PLLC
100 Wall Street, 23rd Floor
New York, New York 10005
(212) 687-0100
amajor@harrisbeach.com
bhall(âlharrisbeach.com
Counsel for Defendants
Gramatan Management Inc.
Esplanade Gardens Tenants Corp.
To: Plaintiff via NYSCEF
61 of
of 26
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To commence the statutory time for appeals
as of right (CPLR 5513[a]), you are advised
to serve a copy of this order, with notice of
entry, upon all parties.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
______________________________________________________________________Ç
Tricia S. Lindsay, INDEX NO. 61029/2023
Plaintiff, DECISION/ORDER
Motion Seq. # 2, 3, and 4
-against-
Gramatan Management Inc. and
Esplanade Gardens Tenants Corp.,
. .
Defendants.
______________________________________________________________________Ç
EVERETT, J.
Upon consideration of the papers filed in the New York State Courts Filing System
(NYSCEF) Doc Nos. 38-75, relative to the motion by defendants to extend the time to respond to
plaintiff's amended complaint (CPLR 2004, motion # 2 [NYSCEF Doc No. 38]); the motion by
plaintiff for a default judgment (CPLR 3215), damages, an injunction, and the appointment of a
receiver (motion # 3 [NYSCEF Doc No. 45]); and the motion by defendants to extend the time to
respond and to dismiss the complaint (CPLR 3211, motion # 4 [NYSCEF Doc No. 56]), the Court
determines as follows:
The verified amended complaint (NYSCEF Doc No. 14) states that this action concerns
plaintiff's apartment, located at 531 E. Lincoln Avenue, Suite 5B, Mount Vernon, in the County
of Westchester (apartment), in which she has an ownership interest. Plaintiff alleges a controversy
with Esplanade Gardens Tenants Corp. (Esplanade), the nonprofit cooperative owner of the
building where plaintiff's apartment is located, and Gramatan Management Inc. (Gramatan)
(together defendants), the property management company charged with maintaining the unit and
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FILED
NYSCEF DOC.
:3
WESTCHESTER
NO. 84 COUNTY CLERK 01/G9/2024 33:33 RM|RECEIVED NYSCEF: 01/29/2024
NYf EF DOC. NO. 89 RECEIVED NYSCEF: 01/09/2024
the building. Plaintiff entered into an agreement with Esplanade, whereby Esplanade was to
address external factors and structural defects that affect plaintiff's apartment. Plaintiff
(defects)
complained of which are listed in the amended complaint, to Esplanade, the Board of
defects,
and Gramatan and failed to address her concerns and allegedly violated Real
Directors, they
Law as to the of habitability. The amended complaint lists seven causes
Property § 235-b warranty
of action: the appointment of a receiver, negligence, fair debt collections practices act against
. .
Gramatan, unfair trade practices (General Business Law §349 [h]), reformation of the lease and a
judgment against Esplanade, injunctive relief, and private nuisance.
declaratory
Defendants - Motion (# 2) to Extend Time
In the affirmation in support (NYSCEF Doc No. 39), defendants state that on July 17, 2023,
defendants'
plaintiff interposed the verified amended complaint; that on August 23, 2023, current
counsel, which had just received a referral, sought an extension, which plaintiff refused to grant;
and that on August 24, 2023, Esplanade's current attorney filed a consent to change attorney
(NYSCEF Doc No. 37) and filed this motion. Defendants argue that time is needed to investigate
plaintiff's allegations and ascertain if there are any .meritorious defenses.
defendants'
In opposition (NYSCEF Doc No. 42), plaintiff contends that request is in bad
faith, untimely, and prejudicial. Plaintiff asks the Court to grant her default judgment motion
instead of allowing defendants to answer. Plaintiff notes that by stipulation defendants agreed to
waive service of the amended complaint and to file an answer by August 24, 2023 (NYSCEF Doc
No. 44). Instead of receiving an answer, plaintiff was notified that defendants had retained new
counsel and a 30-day extension was requested.
Plaintiff focuses on the merits of her action, asserting that she has been attempting to get
defendants to address and resolve her complaints, which violate the warranty of habitability, for
2
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seven years. Plaintiff faults defendants, not the newly retained attorneys, for ignoring her issues
and threatening her with eviction. Plaintiff calculates defendants "are seeking a second thirty (30)
on of the one that were thus in essence them one-
day extension, top they already granted, giving
hundred twenty (120) days to submit their Answer to the original Complaint and ninety (90) days
identical."
to submit their Answer to the Amended Complaint, both of which are virtually Plaintiff
defendants'
contends that defendants have breached the stipulation. Plaintiff does notdispute that
new counsel was retained August 23, 2023, but accuses defendants of gamesmanship, while her
apartment remains in disrepair.
In reply (NYSCEF Doc No. 52), defendants argue that plaintiff's opposition papers are
untimely and defective by failing to comply with CPLR 2214 (b), and, even if timely, do not .
comply with 22 NYCRR 202.8-b (c), in that the papers lack a word certification. Defendants argue
that the Court should not rush to judgment; that plaintiff does·not contest CPLR 2004 and the
Court's to grant the that plaintiff filed a motion for a default judgment twenty-
authority extension;
two days after filing pleadings without any indication of service, then agreed to a two-week
extension to answer with prior counsel, but CPLR 2004 "enables this Court to grant extensions
regardless of 'whether the application for extension is made before or after the expiration of the
fixed' defendants'
time "; and that counsel seeks a fair opportunity to investigate and prepare
defenses, which may include the statute of limitations.
Plaintiff - Motion (# 3) for Default Judgment
In support of her motion for a default judgment (NYSCEF Doc No. 46), plaintiff reviews
the allegations stated in the amended complaint, asserts that the stipulation (NYSCEF Doc No. 50)
wasgiolated, concluding that a default judgment should be granted.
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In opposition (NYSCEF Doc Nos. 54 and 55), defendants contend that plaintiff did not
adequately submit proof of the facts constituting her claim; that she did not establish a viable cause
of action because her claims are time-barred and defective; that plaintiff's affirmation in support
is defective because it does not contain the necessary word count certification; and that the policies
of the State are that matters should be adjudicated on the merits, and that defaults should be opened
so parties may have their day in court.
Defendants argue that, despite filing an amended complaint, which supersedes the original
complaint, plaintiff relies on the original complaint, so she has not submitted proof of the facts;
that plaintiff does not have a viable cause of action, predominantly because the claims date back
to November 2015 and are time-barred, or otherwise not valid claims; and that plaintiff's
affirmation in support is of no probative value and does not provide a word certification.
Defendants - Motion (# 4) for Dismissal of the Amended Complaint
In support of their motion (NYSCEF Doc No. 57), defendants note that plaintiff's
apartment issues, including damage to floors and ceilings, were pre-existing, dating back to 2015;
that in May 2023, after exhausting good faith efforts over two years, Esplanade terminated
plaintiff's lease due to maintenance arrears exceeding $19,000 (NYSCEF Doc No. 67), as averred
by Sharon Eaddy (Eaddy), the board president of Esplanade (NYSCEF Doc No. 60); and that
plaintiff commenced this lawsuit five days after the notice of termination.
Regarding the specific causes of action, defendants argue that the first two causes of action,
to appoint a receiver of rents and for injunctions, do not exist as a matter of law; that four causes
of action, for negligence, violation of the Fair Debt Collections Act, a declaratory judgment, and
for private nuisance, are time-barred; and that plaintiff's claims for a violation of General Business
4
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Law §349 (h) and for punitive damages are insufficiently pled and are devoid of factual and legal
support.
Defendants explain that plaintiff bought shares for the apartment, a co-operative unit and
condition"
signed a proprietary lease in 2006, accepting the apartment in "as is (NYSCEF Doc
Nos. 61, 62); that in 201.5, plaintiff received an estimate in connection with fixing walls and
ceilings in the apartment and painting, but the deterioration continued, with plaintiff continuous
awareness in March 2020, as documented by a third party around March 18, 2020, who continued
to document damage stemming from the issues that plaintiff was aware of in 2015; that p>aintiff
was required to bring a negligence action by 2018; that, although plaintiff did make some
maintenance payments, she maintained a balance due of $19,035.65; that any violation of The Fair
Debt Collections Act, which has a one year statute of limitations, would have occurred :in August
2021, requiring that an action be commenced in 2022; that plaintiff is attempting to reform a 2006
lease beyond the six-year statute of limitations for a declaratory judgment claim, which should
have been brought by 2012; that the lease excludes items for which defendants are not responsible,
but provides that defendants will be liable for their own negligence; that a nuisance claim has a
three-year statute of limitations; that plaintiff does not link the actions alleged to an ulterior motive
establishing high moral culpability or malicious intention required for an award of punitive
damages; that plaintiff does not establish that punitive damages are required to deter future conduct
of the public in general; and that plaintiff's claims are not public but inherently private in nature.
In opposition (NYSCEF Doc No. 69), plaintiff contends defendants have failed to prove
that of the claims are time-barred, and since the statute of limitations is an affirmative defense,
any
defendants'
bear the burden of proof. Plaintiff argues that defendants have failed to submit any
documents, which meet the standard of clarity and authenticity required for admissible evidence;
5
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that Eaddy's affidavit is hearsay and not made upon personal knowledge; that the business records
offered in support of Eaddy's affidavit are inadmissible as they are not presented by anyone with
knowledge of the business dealings between plaintiff and Esplanade and .cannot be considered
documentary evidence, as they are ambiguous and questionable in their authenticity; that the
continuing wrong doctrine and the discovery rule are applicable; that the source of the issues
present in the apartment were latent defects discovered in December 2020; that plaintiff relied on
the representation of Eaddy and Gramatan regarding repairs to her detrinient, and that defendants
failed to reimburse plaintiff for the five thousand ($5,000.00) dollar expense associated with
plaintiff and her daughter staying in a hotel for approximately thirty days, and to credit her for
maintenance payments.
Plaintiff asserts that multiple contractors and engineers have examined the apartment,
defendants'
including contractors and engineers, and concluded that the apartment has structural
damage, which was been exacerbated by the alleged failure of defendants to properly repair the
defendants'
damages over multiple years, rendering the apartment less habitable. Plaintiff protests
threatened eviction, including late fees, and forfeiting a parking spot.
In reply (NYSCEF Doc No. 72), defendants assert that plaintiff did not overcome the law,
which prevents her from properly asserting a cause of action for injunctive relief, and regarding
the statute of limitations on her negligence claim; that plaintiff did not contest that the causes of
action for a declaratory judgment and private nuisance are time-barred; that she did not establish,
with any specifics, that she sufficiently pled a claim under General Business Law §349 (b) and
for punitive damages; and that plaintiff's submission does not comply with CPLR 2214 (b).
Preliminary Arguments
CPLR 2214 (b) provides:
. .
6
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(b) Time for service of notice and affidavits. A notice of motion and supporting
affidavits shall be served at least eight days before the time at which the motion is
noticed to be heard. Answering affidavits shall be served at least two days before
such time. Answering affidavits and any notice of cross-motion, with supporting
papers, if any, shall be served at least seven days before such time if a notice of .
motion served at least sixteen days before such time so demands; whereupon any
reply or responding affidavits shall be served at least one day before such time.
22 NYCRR 202.8-b (c)
(c) Every brief, memorandum, affirmation, and affidavit which was prepared by
u
Preview
INDEX NO. 61029/2023 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 01/29/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER ---------------------------------------------------------------X TRICIA S. LINDSAY, Index No: 61029/2023 Plaintiff’s, NOTICE OF -against- APPEAL GRAMATAN MANAGEMENT INC. and ESPLANADE GARDENS TENANTS CORP., Defendants. ---------------------------------------------------------------X PLEASE TAKE NOTICE that defendants Gramatan Management Inc. and Esplanade Gardens Tenants Corp., by their counsel, Harris Beach PLLC, appeal to the Appellate Division, Second Judicial Department from an order of the Supreme Court, Nassau County by Justice David F. Everett dated January 4, 2024 and entered on January 5, 2024. PLEASE TAKE FURTHER NOTICE that this appeal is from the whole order and each part of it that aggrieved Defendants. Dated: New York, New York January 29, 2024 ______________________________ By: Andre J. Major, Esq. Brendan P. Hall, Esq. Harris Beach PLLC 100 Wall Street, 23rd Floor New York, New York 10005 (212) 687-0100 amajor@harrisbeach.com bhall@harrisbeach.com Counsel for Defendants Gramatan Management Inc. Esplanade Gardens Tenants Corp. To: Plaintiff via NYSCEF 1 of 26 INDEX NO. 61029/2023 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 01/29/2024 2 of 26 INDEX NO. 61029/2023 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 01/29/2024 January 4, 2024 3 of 26 INDEX NO. 61029/2023 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 01/29/2024 4 of 26 INDEX NO. 61029/2023 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 01/29/2024 5 of 26 FILED : WESTCHESTER COUNTY CLERK 01/29/2024 03:17 INDEX INDEX NO. NO. 61029/2023 61029/2023 PN| NYSCEF NYSCEF DOC. DOC. NO. NO. 84 83 RECEIVED RECEIVED NYSCEF: NYSCEF: 01/29/2024 01/29/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER ---------------------------------------------------------------X TRICIA S. LINDSAY, Index No: 61029/2023 Plaintiff's, NOTICE OF -against- ENTRY GRAMATAN MANAGEMENT INC. and ESPLANADE GARDENS TENANTS CORP., Defendants. ---------------------------------------------------------------X PLEASE TAKE NOTICE that the annexed order is a true and accurate copy of an order by Justice David F. Everett dated January 4, 2024, which was entered into the Westchester County Clerk's Office on January 5, 2024. Dated: New York, New York January 29, 2024 By: Andre J. jor, Esq. Brendan P. Hall, Esq. Harris Beach PLLC 100 Wall Street, 23rd Floor New York, New York 10005 (212) 687-0100 amajor@harrisbeach.com bhall(âlharrisbeach.com Counsel for Defendants Gramatan Management Inc. Esplanade Gardens Tenants Corp. To: Plaintiff via NYSCEF 61 of of 26 20 INDEX NO. 61029/2023 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 01/29/2024 To commence the statutory time for appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this order, with notice of entry, upon all parties. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER ______________________________________________________________________Ç Tricia S. Lindsay, INDEX NO. 61029/2023 Plaintiff, DECISION/ORDER Motion Seq. # 2, 3, and 4 -against- Gramatan Management Inc. and Esplanade Gardens Tenants Corp., . . Defendants. ______________________________________________________________________Ç EVERETT, J. Upon consideration of the papers filed in the New York State Courts Filing System (NYSCEF) Doc Nos. 38-75, relative to the motion by defendants to extend the time to respond to plaintiff's amended complaint (CPLR 2004, motion # 2 [NYSCEF Doc No. 38]); the motion by plaintiff for a default judgment (CPLR 3215), damages, an injunction, and the appointment of a receiver (motion # 3 [NYSCEF Doc No. 45]); and the motion by defendants to extend the time to respond and to dismiss the complaint (CPLR 3211, motion # 4 [NYSCEF Doc No. 56]), the Court determines as follows: The verified amended complaint (NYSCEF Doc No. 14) states that this action concerns plaintiff's apartment, located at 531 E. Lincoln Avenue, Suite 5B, Mount Vernon, in the County of Westchester (apartment), in which she has an ownership interest. Plaintiff alleges a controversy with Esplanade Gardens Tenants Corp. (Esplanade), the nonprofit cooperative owner of the building where plaintiff's apartment is located, and Gramatan Management Inc. (Gramatan) (together defendants), the property management company charged with maintaining the unit and 7 of 26 INDEX NO. 61029/2023 INDEX NO. 61029/2023 FILED NYSCEF DOC. :3 WESTCHESTER NO. 84 COUNTY CLERK 01/G9/2024 33:33 RM|RECEIVED NYSCEF: 01/29/2024 NYf EF DOC. NO. 89 RECEIVED NYSCEF: 01/09/2024 the building. Plaintiff entered into an agreement with Esplanade, whereby Esplanade was to address external factors and structural defects that affect plaintiff's apartment. Plaintiff (defects) complained of which are listed in the amended complaint, to Esplanade, the Board of defects, and Gramatan and failed to address her concerns and allegedly violated Real Directors, they Law as to the of habitability. The amended complaint lists seven causes Property § 235-b warranty of action: the appointment of a receiver, negligence, fair debt collections practices act against . . Gramatan, unfair trade practices (General Business Law §349 [h]), reformation of the lease and a judgment against Esplanade, injunctive relief, and private nuisance. declaratory Defendants - Motion (# 2) to Extend Time In the affirmation in support (NYSCEF Doc No. 39), defendants state that on July 17, 2023, defendants' plaintiff interposed the verified amended complaint; that on August 23, 2023, current counsel, which had just received a referral, sought an extension, which plaintiff refused to grant; and that on August 24, 2023, Esplanade's current attorney filed a consent to change attorney (NYSCEF Doc No. 37) and filed this motion. Defendants argue that time is needed to investigate plaintiff's allegations and ascertain if there are any .meritorious defenses. defendants' In opposition (NYSCEF Doc No. 42), plaintiff contends that request is in bad faith, untimely, and prejudicial. Plaintiff asks the Court to grant her default judgment motion instead of allowing defendants to answer. Plaintiff notes that by stipulation defendants agreed to waive service of the amended complaint and to file an answer by August 24, 2023 (NYSCEF Doc No. 44). Instead of receiving an answer, plaintiff was notified that defendants had retained new counsel and a 30-day extension was requested. Plaintiff focuses on the merits of her action, asserting that she has been attempting to get defendants to address and resolve her complaints, which violate the warranty of habitability, for 2 2 of 28 8 of 26 INDEX NO. 61029/2023 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 01/29/2024 seven years. Plaintiff faults defendants, not the newly retained attorneys, for ignoring her issues and threatening her with eviction. Plaintiff calculates defendants "are seeking a second thirty (30) on of the one that were thus in essence them one- day extension, top they already granted, giving hundred twenty (120) days to submit their Answer to the original Complaint and ninety (90) days identical." to submit their Answer to the Amended Complaint, both of which are virtually Plaintiff defendants' contends that defendants have breached the stipulation. Plaintiff does notdispute that new counsel was retained August 23, 2023, but accuses defendants of gamesmanship, while her apartment remains in disrepair. In reply (NYSCEF Doc No. 52), defendants argue that plaintiff's opposition papers are untimely and defective by failing to comply with CPLR 2214 (b), and, even if timely, do not . comply with 22 NYCRR 202.8-b (c), in that the papers lack a word certification. Defendants argue that the Court should not rush to judgment; that plaintiff does·not contest CPLR 2004 and the Court's to grant the that plaintiff filed a motion for a default judgment twenty- authority extension; two days after filing pleadings without any indication of service, then agreed to a two-week extension to answer with prior counsel, but CPLR 2004 "enables this Court to grant extensions regardless of 'whether the application for extension is made before or after the expiration of the fixed' defendants' time "; and that counsel seeks a fair opportunity to investigate and prepare defenses, which may include the statute of limitations. Plaintiff - Motion (# 3) for Default Judgment In support of her motion for a default judgment (NYSCEF Doc No. 46), plaintiff reviews the allegations stated in the amended complaint, asserts that the stipulation (NYSCEF Doc No. 50) wasgiolated, concluding that a default judgment should be granted. 9 of 26 INDEX NO. 61029/2023 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 01/29/2024 In opposition (NYSCEF Doc Nos. 54 and 55), defendants contend that plaintiff did not adequately submit proof of the facts constituting her claim; that she did not establish a viable cause of action because her claims are time-barred and defective; that plaintiff's affirmation in support is defective because it does not contain the necessary word count certification; and that the policies of the State are that matters should be adjudicated on the merits, and that defaults should be opened so parties may have their day in court. Defendants argue that, despite filing an amended complaint, which supersedes the original complaint, plaintiff relies on the original complaint, so she has not submitted proof of the facts; that plaintiff does not have a viable cause of action, predominantly because the claims date back to November 2015 and are time-barred, or otherwise not valid claims; and that plaintiff's affirmation in support is of no probative value and does not provide a word certification. Defendants - Motion (# 4) for Dismissal of the Amended Complaint In support of their motion (NYSCEF Doc No. 57), defendants note that plaintiff's apartment issues, including damage to floors and ceilings, were pre-existing, dating back to 2015; that in May 2023, after exhausting good faith efforts over two years, Esplanade terminated plaintiff's lease due to maintenance arrears exceeding $19,000 (NYSCEF Doc No. 67), as averred by Sharon Eaddy (Eaddy), the board president of Esplanade (NYSCEF Doc No. 60); and that plaintiff commenced this lawsuit five days after the notice of termination. Regarding the specific causes of action, defendants argue that the first two causes of action, to appoint a receiver of rents and for injunctions, do not exist as a matter of law; that four causes of action, for negligence, violation of the Fair Debt Collections Act, a declaratory judgment, and for private nuisance, are time-barred; and that plaintiff's claims for a violation of General Business 4 10 of 26 INDEX NO. 61029/2023 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 01/29/2024 Law §349 (h) and for punitive damages are insufficiently pled and are devoid of factual and legal support. Defendants explain that plaintiff bought shares for the apartment, a co-operative unit and condition" signed a proprietary lease in 2006, accepting the apartment in "as is (NYSCEF Doc Nos. 61, 62); that in 201.5, plaintiff received an estimate in connection with fixing walls and ceilings in the apartment and painting, but the deterioration continued, with plaintiff continuous awareness in March 2020, as documented by a third party around March 18, 2020, who continued to document damage stemming from the issues that plaintiff was aware of in 2015; that p>aintiff was required to bring a negligence action by 2018; that, although plaintiff did make some maintenance payments, she maintained a balance due of $19,035.65; that any violation of The Fair Debt Collections Act, which has a one year statute of limitations, would have occurred :in August 2021, requiring that an action be commenced in 2022; that plaintiff is attempting to reform a 2006 lease beyond the six-year statute of limitations for a declaratory judgment claim, which should have been brought by 2012; that the lease excludes items for which defendants are not responsible, but provides that defendants will be liable for their own negligence; that a nuisance claim has a three-year statute of limitations; that plaintiff does not link the actions alleged to an ulterior motive establishing high moral culpability or malicious intention required for an award of punitive damages; that plaintiff does not establish that punitive damages are required to deter future conduct of the public in general; and that plaintiff's claims are not public but inherently private in nature. In opposition (NYSCEF Doc No. 69), plaintiff contends defendants have failed to prove that of the claims are time-barred, and since the statute of limitations is an affirmative defense, any defendants' bear the burden of proof. Plaintiff argues that defendants have failed to submit any documents, which meet the standard of clarity and authenticity required for admissible evidence; 5 11 of 26 INDEX NO. 61029/2023 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 01/29/2024 that Eaddy's affidavit is hearsay and not made upon personal knowledge; that the business records offered in support of Eaddy's affidavit are inadmissible as they are not presented by anyone with knowledge of the business dealings between plaintiff and Esplanade and .cannot be considered documentary evidence, as they are ambiguous and questionable in their authenticity; that the continuing wrong doctrine and the discovery rule are applicable; that the source of the issues present in the apartment were latent defects discovered in December 2020; that plaintiff relied on the representation of Eaddy and Gramatan regarding repairs to her detrinient, and that defendants failed to reimburse plaintiff for the five thousand ($5,000.00) dollar expense associated with plaintiff and her daughter staying in a hotel for approximately thirty days, and to credit her for maintenance payments. Plaintiff asserts that multiple contractors and engineers have examined the apartment, defendants' including contractors and engineers, and concluded that the apartment has structural damage, which was been exacerbated by the alleged failure of defendants to properly repair the defendants' damages over multiple years, rendering the apartment less habitable. Plaintiff protests threatened eviction, including late fees, and forfeiting a parking spot. In reply (NYSCEF Doc No. 72), defendants assert that plaintiff did not overcome the law, which prevents her from properly asserting a cause of action for injunctive relief, and regarding the statute of limitations on her negligence claim; that plaintiff did not contest that the causes of action for a declaratory judgment and private nuisance are time-barred; that she did not establish, with any specifics, that she sufficiently pled a claim under General Business Law §349 (b) and for punitive damages; and that plaintiff's submission does not comply with CPLR 2214 (b). Preliminary Arguments CPLR 2214 (b) provides: . . 6 12 of 26 INDEX NO. 61029/2023 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 01/29/2024 (b) Time for service of notice and affidavits. A notice of motion and supporting affidavits shall be served at least eight days before the time at which the motion is noticed to be heard. Answering affidavits shall be served at least two days before such time. Answering affidavits and any notice of cross-motion, with supporting papers, if any, shall be served at least seven days before such time if a notice of . motion served at least sixteen days before such time so demands; whereupon any reply or responding affidavits shall be served at least one day before such time. 22 NYCRR 202.8-b (c) (c) Every brief, memorandum, affirmation, and affidavit which was prepared by u