Landlord, as limited by its brief, appeals from so much of an order of the Civil Court, New York County (Michelle D. Schreiber, J.), dated September 13, 2004, as granted tenant's motion to dismiss the petition and denied, as moot, landlord's cross motion for partial summary judgment in a nonpayment summary proceeding.

PER CURIAM:

Order (Michelle D. Schreiber, J.), dated September 13, 2004, modified to deny tenant's dismissal motion and to reinstate the petition; as modified, order insofar as appealed from affirmed, without costs.

Dismissal of the nonpayment petition was unwarranted, since the documentary evidence relied upon by tenant does not establish as a matter of law the bona fides of her defense founded upon Multiple Dwelling Law § 302 or otherwise conclusively refute landlord's rent claim (see generally Leon v Martinez, 84 NY2d 83, 87-88 [1994]). No dispositive showing was made that the present configuration of the second floor of the building premises or tenant's occupancy thereof constitutes a violation of the extant, 1924 Certificate of Occupancy, which authorized "Tenement" use of the building's second through fifth floors. Tenant's present challenge to the facial validity of the certificate and raised for the first time on appeal, is not properly considered.

This constitutes the decision and order of the court.
I concur I concur
Decision Date: July 3, 2006