Alter & Barbaro, Esqs. (Nichole B. Castillo of counsel), for appellant. Camba Legal Services (Kadeen Meo of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sergio Jimenez, J.), entered January 22, 2024. The order granted tenant's motion for summary judgment dismissing the petition in a nonpayment summary proceeding.

ORDERED that the order is affirmed, without costs.

In this November 2019 nonpayment proceeding to recover possession of a rent- stabilized apartment based upon rent arrears that had allegedly accrued from November 2018 through November 2019, tenant asserted an affirmative defense based upon Multiple Dwelling Law § 302-a and deposited all required rent into escrow. Tenant moved for summary judgment dismissing the petition based on Multiple Dwelling Law § 302-a. She asserted that the New York City Department of Housing Preservation and Development (HPD) had issued violations for a rent impairing condition in the public hallway on April 5, 2016, and another condition involving the roof of the building on February 12, 2018. Tenant submitted the HPD violation report, showing that the rent impairing violations were still not corrected as of the date of her motion in October 2023. Landlord opposed the motion, asserting that access to tenant's apartment to make repairs had not been granted. In an order entered January 22, 2024, the Civil Court (Sergio Jimenez, J.) granted tenant's motion for summary judgment dismissing the petition.

It was undisputed that there were violations for rent impairing conditions in the public hallway and the roof of the building which had been open for well over six months (see Multiple Dwelling Law §§ 302-a [2] [b]; [3] [a]; 328 [3]). While landlord is correct that failure to provide access can rebut a Multiple Dwelling Law § 302-a (3) (a) affirmative defense, here, the rent impairing violations were not located inside tenant's apartment (see Multiple Dwelling Law § 302-a [3] [b]). As lack of access was the only reason landlord gave for not correcting the rent impairing conditions, the Civil Court properly found that tenant established her Multiple Dwelling Law § 302-a (3) (a) affirmative defense, entitling her to a 100% rent abatement six [*2]months after the rent impairing violation was issued. Thus, there is no basis for this nonpayment proceeding predicated on arrears from November 2018 through November 2019.

Landlord's remaining contention, that tenant did not certify that the violations were not corrected, is raised for the first time on appeal and not properly before this court (see U.S. Bank N.A. v Doura, 204 AD3d 721 [2022]). It is, in any event, without merit because the owner's "[f]ailure to file [a] certification of compliance shall establish a prima facie case that such violation has not been corrected" (Administrative Code of City of NY § 27-2115 [f] [7]), and landlord has not rebutted that showing.

Accordingly, the order is affirmed.

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.