Varela v. Miller

Hoestadter, J. But for the question of jurisdiction raised for the first time on appeal, this case would require no formal expression of the view of the majority of the court. The finding below that the tenant violated a substantial obligation of the lease which he failed to cure after proper written notice and created a nuisance which he permitted to continue is amply sup [89] ported by the evidence. The petition in the summary proceeding adequately alleged the foregoing as the grounds on which possession of the demised premises was sought. On the trial the tenant did not challenge the sufficiency of the petition or the court’s jurisdiction to entertain the proceeding. The issue — the only issue raised — whether the tenant had violated a sub-' stantial obligation of his tenancy or had permitted the continuance of a nuisance was tried and decided on the merits. It is obvious that the case stated in the petition was one which, if established, justifies a final order in the landlord’s favor. That was enough to give the court jurisdiction of the subject matter. If the tenant chose to go to trial on the issue so tendered by the petition and failed to avail himself of the objection that the petition did not set forth the conditional limitation of the lease and its proper exercise — assuming this to be a tenable objection — the court did not thereby lose jurisdiction of the proceeding and it is too late to invoke the objection now on appeal. We are naturally averse to disturbing a sound result reached by the court below merely because of a supposed defect in pleading — ignored by everyone on the trial had. Our aversion persists even in a summary proceeding because we are mindful of the authoritative expressions in controlling decisions that in the existing emergency, when necessary to effect a just result, we may discard conventional but unrealistic concepts of the landlord-tenant relationship, particularly in a statutory tenancy which rests upon the grace of legislative enactment and not on the agreement of the parties. There is, in any event, a complete answer to the present argument founded on the conditional limitation. A conditional limitation is a provision embodied in a lease to give the landlord added protection by enabling him to end the term before its natural expiration date. In this case the term has already run its full course and the tenant is in possession as a statutory tenant. In that situation the conditional limitation has spent its force and there can no longer be any need to resort to it. If, after the expiration of the term under a lease containing a conditional limitation, a landlord must comply with the conditional limitation provision before he can bring a summary proceeding for the removal of a statutory tenant, he is worse off than a landlord similarly situated but for the absence of a conditional limitation in the expired lease. Thus, the conditional limitation, conceived to give the landlord under a still current lease greater rights, places him at a disadvantage. In my judgment, the con [90] ditional limitation becomes inapplicable when the landlord seeks to remove a statutory tenant for a violation of a substantial obligation of the tenancy. Insofar as 89-09 Sutphin Corp. v. Scarinzi (187 Misc. 537) is to the contrary, we must decline to follow it. The final order should be affirmed, with $25 costs.