considered in determining whether she breached a substantial obligation of the lease
because she had withheld rent due to landlord's failure to make repairs. However, tenant's
claim as to the reason she did not pay rent is not conclusively established by her moving
papers. Although the stipulations of settlement that the parties entered into attendant to
the 2010 and 2011 nonpayment proceedings state that landlord was to make specified
repairs, tenant's answers to the 2010 and 2011 petitions did not assert any habitability or
repair claim. Rather, in the 2010 proceeding, tenant's answer stated that a portion of the
rent had already been paid to landlord and, in the 2011 proceeding, tenant's answer
contained a general denial to the petition. The fact that the subsequent stipulations state
that landlord is to make repairs does not conclusively establish the reason for tenant's
failure to pay rent. In fact, in regard to the 2011 proceeding, the stipulations of settlement
state that tenant sought to obtain a "one-shot deal," which indicates that tenant had
financial reasons for not paying rent in 2011. Consequently, the branch of tenant's
motion seeking to dismiss the petition pursuant to CPLR 3211 (a) (7), on the ground that
it fails to state a cause of action, should have been denied. Furthermore, since none of the
documentary evidence provided in support of tenant's motion conclusively refutes
landlord's claim that tenant had violated a substantial obligation of the lease (see A G
Capital Funding Partners, L.P. v State St. Bank Trust Co., 5 NY3d 582, 592 [2005];
Martin v New York Hosp. Med.
Ctr. of Queens, 34 AD3d 650, 650 [2006]), tenant is not entitled to the dismissal
of the petition pursuant to CPLR 3211 (a) (1), on the ground that a defense is founded