
    520 East 81st Street Associates, Appellant, v Lenox Hill Hospital et al., Respondents.
    Argued January 8, 1976;
    decided February 10, 1976
    
      
      Martin London and Adrea D. Sporer for appellant.
    I. A landlord may institute judicial summary holdover proceedings against a tenant not entitled to the protection of the Emergency Rent Laws without first exhausting his administrative remedies. (Kovarsky v Brooklyn Union Gas Co., 279 NY 304; Szendy v Board of Educ., Union Free School Dist. No. 17, Town of Oyster Bay, 22 Misc 2d 1; City of New York v Maltbie, 274 NY 90; Matter of Durant [MVAICJ 20 AD2d 242, 15 NY2d 408; Matter of Wasserstein v Gabel, 52 Misc 2d 199; 8200 Realty Corp. v Lindsay, 27 NY2d 124; Hewitt v New York, New Haven & Hartford R. R. Co., 284 NY 117; Suppus v Bradley, 278 App Div 337.) II. Lenox Hill Hospital, a subletting tenant-landlord not occupying any portion of the premises, is not entitled to the protection of the Rent Stabilization Law of 1969. (WMCA v Blockfront Realty Corp., 272 App Div 800; Hutchins v Phillips, 277 App Div 1055; People ex rel. McGoldrick v Regency Park, 201 Misc 109, 280 App Div 804, 305 NY 650; White-Way Arcade v Broadway Turtle King, 273 App Div 281.) III. A change in subtenants subsequent to June 30, 1971 created a "vacancy” within the meaning of chapter 371 of the Laws of New York of 1971. IV. Upon the ouster of Lenox Hill, the subtenants do not become rent stabilized prime tenants of the landlord who are entitled to possession of the apartments. (Eten v Luyster, 60 NY 252; Bove v Coppola, 45 Misc 636.)
    
      Edmund F. Wolk for respondents.
    I. Both of the courts below were correct when they held that the dwelling units rented to Lenox Hill Hospital were unquestionably covered by the Rent Stabilization Law. (Oneida Nat. Bank & Trust Co. of Utica v Manikas, 10 Misc 2d 671; Matter of Proppe, 46 Misc 2d 247; Matter of Pierse v Zimmerman 255 App Div 708.) II. Both of the courts below were correct in affirming the trial court’s determination that the evidence at trial clearly showed that the housing accommodations never became vacant. (I. H. P. Corp. v 210 Cent. Park South Corp., 27 Misc 2d 964, 16 AD2d 461, 12 NY2d 329; Smith v People, 47 NY 330; Association of Contr. Plumbers of City of N. Y. v Contracting Plumbers Assn. of Brooklyn & Queens, 302 NY 495.) III. Both of the courts below were correct in affirming the trial court’s determination that petitioner was premature in instituting the holdover proceeding without first obtaining an order of decontrol from the conciliations and appeals board based upon the "primary residence” law. IV. The Emergency Tenant Protection Act of 1974 emphasizes the legislative intent that dwelling units in New York City should be subject to rent control. Moreover, the said act makes the landlord’s appeal moot since the dwelling units rented to Lenox Hill are subject to rent control, whether pursuant to the Rent Stabilization Law of 1969 or the Emergency Tenant Protection Act. (Matter of Brooks, 119 App Div 780; Waterman v Marpet, 281 App Div 896; Lo Vallo v Bellanca, 11 AD2d 901; Roche v Lamb, 33 AD2d 1102.)
   Memorandum. Order of the Appellate Division affirmed, with costs. ■

The proceedings in Civil Court to obtain summary eviction were appropriate to test the applicability of the Rent Stabilization Law of 1969, without first exhausting administrative remedies. Indeed, the Appellate Term was unanimous on this point. But, once it was determined that the Rent Stabilization Law of 1969 was applicable, issues arising under the provisions of that law would be required to be passed upon administratively until that remedy be exhausted.

The Appellate Term and the Appellate Division correctly determined that the 1969 law applied because none of the kinds of housing accommodations excepted from its coverage encompasses the apartments in question (Administrative Code of City of New York, § YY51-3.0, subd a). Moreover, the Emergency Tenant Protection Act of 1974 (L 1974, ch 576) does not exclude the apartments in question. The proviso in section 5 of that statute, if it is at all relevant, refers to accommodations provided, that is, let, by a hospital as landlord or sublandlord in relation to its tenants or subtenants, and not to the hospital as tenant or subtenant in relation to a real estate entrepreneur landlord or sublandlord. Hence, assuming that the issue of vacancy decontrol could properly have been brought before the court without first exhausting the administrative remedy, the 1974 statute made that issue irrelevant with respect to the eviction relief sought by landlord’s petition in Civil Court. The statute nullified and terminated the experiment of vacancy decontrol for reasons of current emergency, hardly allowing of exception for tenants sought to be evicted because of the very conditions which brought about the emergency enactment. Any other issue with respect to standards of rent regulation, control or stabilization must be pursued through the administrative channels provided under the several regulatory enactments, and any codes adopted pursuant to them.

The Appellate Term quite correctly determined the proceeding before it and determined the very question of applicability of the Rent Stabilization Law to the apartments involved, as distinguished from enforcement of its provisions, without requiring that administrative remedies be first exhausted. Thus, appellant landlord gratuitously distorts the holdings below in characterizing them as precluding all issues because the landlord had not exhausted its administrative remedies. The Appellate Term, in necessarily invoking the exhaustion of remedies doctrine, was presumably referring to the other issues raised by the landlord seeking to exclude the apartments from continued regulation on the ground of vacancy decontrol, or denial of the right of subtenants to protection of the Rent Stabilization Law, and the like.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in memorandum.

Order affirmed.  