Thora D. Gonzalez, Respondent, v. Richard Peterson et al., Appellants

McCooe, J.

(dissenting). The Civil Court had subject matter jurisdiction of this summary proceeding and the judgment cannot be collaterally attacked. (Lacks v Lacks, 41 NY2d 71, 75; CCA 204.) Any issue not preserved in the trial court should not be considered on this appeal.

The landlord lives in this four-family multiple dwelling in the apartment underneath the tenant. The basis for this proceeding was that the tenant made vulgar and harassing telephone calls to the landlord at 5:00 to 6:00 a.m.; there were water leaks from the tenant’s apartment; they banged on pipes, walls, floor and landlord’s door; they removed a wall, door and structural supports, exposing electrical wires and denied access to the subject apartment. The Environmental Control Board issued a violation and a fine for the wall that was removed. The trial court found for the landlord but did not make specific findings of fact.

The majority cites Telaro v Telaro (25 NY2d 433) for the proposition that the Court of Appeals can consider arguments not raised in the Appellate Division. The argument had been raised at the trial level only. The three-person dissenting opinion (at 444) stated that “there has been a marked reluctance by the court to exercise the power” and that an issue not raised in the Appellate Division should be considered waived.

Literally accepting the language of the Court of Appeals quoted by the majority would require an appellate court to consider an issue not preserved in the trial court if it would be determinative of the result. Therefore, nonpreserved issues as basic as the Statutes of Frauds or Limitations which would be determinative could not be waived. This is contrary to law and would render the principle of preservation almost meaningless. The better practice is to limit the Telaro case {supra) to subject matter jurisdiction or interest of justice cases.

There is no reasoned basis shown for this court to exercise its discretion and consider an issue not raised in the trial court. The judgment should be affirmed.

Parness, P. J., and Davis, J., concur; McCooe, J., dissents in a separate memorandum.

OPINION OF THE COURT

Per Curiam.

Order and final judgment dated July 7, 1997 reversed, with $30 costs, and final judgment granted in favor of tenants dismissing the holdover petition.

In accordance with a prior stipulation of settlement, tenants entered into the subject apartment premises in August 1993 under a written lease which, by its terms, was “deemed automatically renewed for subsequent two-year terms”. The lease did not contain a provision “giving the landlord the right to terminate the time fixed for occupancy * * * if he deem the tenant objectionable” (RPAPL 711 [1]). Nonetheless, landlord “elect[ed]” to terminate the tenancy, upon 30 days’ notice, on the ground that tenants were committing or permitting a nuisance in the premises. After a trial on the merits, at which no jurisdictional objection was raised, Civil Court granted a final judgment of possession.

For the reasons which follow, we are required to reverse and dismiss the holdover petition. “ ‘ “[A] summary proceeding is a special proceeding governed entirely by statute * * * and it is well established that there must be strict compliance with the statutory requirements to give the court jurisdiction” ’ ” (MSG Pomp Corp. v Doe, 185 AD2d 798, 799-800). The parties’ lease did not permit summary termination of the tenancy if the landlord deemed the tenants objectionable, or for any other reason. Absent such a provision, there was no authority to terminate the tenancy and no authority to maintain a summary proceeding based upon the improper termination (Perrotta v Western Regional Off-Track Betting Corp., 98 AD2d 1, 7, n 4; 12 Warren’s Weed, New York Real Property, Summary Proceedings, § 8.05 [4th ed]; 2 Rasch, New York Landlord and Tenant — Summary Proceedings § 30:59 [3d ed]). Nor are the nuisance provisions of the rent-control or rent-stabilization regulations (9 NYCRR 2204.2 [a] [2]; 2524.2 [b]) implicated in this case since, as pleaded in landlord’s petition, the premises are not subject to rent regulation.

Since there was no holdover, there was no jurisdictional basis for a possessory proceeding under RPAPL article 7. This legal defect was fatal to the proceeding and may be raised upon appeal, notwithstanding the failure to assert it below (Willace Realty Mgt. v Henson, 66 Misc 2d 203). “ ‘[I]f a conclusive ques tion is presented on appeal, it does not matter that the question is a new one not previously suggested. No party should prevail on appeal, given an unimpeachable showing that he had no case in the trial court’ ” (Telaro v Telaro, 25 NY2d 433, 439, quoting Cohen and Karger, Powers of the New York Court of Appeals, at 627-628).

In light of our disposition, we reach no other issue.

The building contains four dwelling units.