dissent in a memorandum by Andrias, J., as follows: Because petitioners have failed to make out all the elements of their prima facie case seeking eviction of respondent from her rent stabilized one-room apartment pursuant to Rent Stabilization Code (9 NYCRR) § 2524.4 (a) (1), I dis*313sent and would reverse the Appellate Term’s order and dismiss the petition.
An owner seeking to recover possession of a rent stabilized housing accommodation pursuant to section 2524.4 (a) (1) must prove that it is for “such owner’s personal use and occupancy as his or her primary residence in the City of New York and/or for the use and occupancy of a member of his or her immediate family as his or her primary residence in the City of New York.”
In their August 13, 2002 termination notice, petitioners sought possession of respondent’s one-room apartment on the fifth floor of their five-story walk-up on Edgecomb Avenue for the use of their 24-year-old daughter because she had “outgrown her current living accommodations” and “require [d] her own living space within the family residence.” Petitioners also intended to have Mrs. Horsford’s “brothers and sisters abroad to live at her family residence for an extended period of time and there is insufficient room” at the family’s first- and second-floor duplex apartment in its present layout.
At the trial of their holdover proceeding, petitioners’ sole witness, Mrs. Horsford, testified that her daughter had been a student at Salisbury State College in Maryland for the past four or five years, had an apartment and a job there and continued to take classes as a part-time student. She also testified that her daughter came home “as often as she could. Sometimes weekends and all the breaks of college — spring, summer, all the breaks — holidays,” and had a New York State driver’s license. Her bedroom in the family residence contained a single bed and her personal belongings. When her brother and sister-in-law in St. Kitts, whom she sponsored for permanent residence status, immigrated to this country, Mrs. Horsford wanted them to live with her in her daughter’s room, leaving no place for her daughter to live.
In granting the petition, the Civil Court found “that Petitioner[s] had presented clear and convincing testimony that they have an honest and good faith intention to have their daughter Claudia occupy the Premises.” The Appellate Term affirmed, finding the Civil Court’s fact-based credibility determination on the issue of good faith to be a fair interpretation of the evidence.
Missing, however, from the notice of termination and Mrs. Horsford’s testimony at trial is any claim, let alone evidence, that her daughter would occupy respondent’s apartment as her primary residence. Absent any testimony of the daughter, subject to cross-examination, that she would occupy respondent’s apartment as her primary residence, any such finding *314would be mere speculation (see Harrilal v Bennett, 1 Misc 3d 905[A], 2003 NY Slip Op 51515[U] [Civ Ct, Kings County 2003]).
The majority faults respondent for not raising the issue before; however, this Court has held that where, as here, a party does not raise new facts, but rather raises a legal argument which appeared on the face of the record and which could not have been avoided if brought to the opposing party’s attention at the proper juncture, raising such an issue for the first time on appeal does not prejudice the opposing party’s legal position in any respect (Chateau D’ If Corp. v City of New York, 219 AD2d 205, 209 [1996], lv denied 88 NY2d 811 [1996]). Petitioner’s failure to plead and prove a prima facie case is such an issue. Accordingly, “[s]ince the record on appeal is sufficient for its resolution and the issue is determinative, it should be reviewed” (id.). [See 5 misc 3d 132(A), 2004 NY Slip Op 51399(U) (2004).]