(dissenting). Plaintiffs are statutory tenants of the apartment house at 1070 Park Avenue, borough of Manhattan. As of May, 1953, the date upon which this record on appeal was settled, eleven of the plaintiffs named no longer had any interest in the appeal — six having purchased their apartments and five having moved out of the building. As of this date, all of the seventy-two apartments have been sold — forty-eight to persons in possession, the others to persons desiring possession.
*166A plan for co-operative ownership of the apartment house, proposed on April 16,1951, had become effective as of September 25, 1951, and the premises were conveyed to the co-operative apartment house corporation. After a substantial number of tenants and others had purchased apartments and obtained proprietary leases, plaintiffs instituted this suit praying for a declaratory judgment to the effect that (1) the co-operative apartment house owner, 1070 Park Avenue Corporation, was not a co-operative corporation; (2) the plan for the sale of co-operative apartments was not entered into in good faith and was contrary to the laws of this State; and (3) certain of defendants who were purchasers of the apartments and the stock allocated thereto be adjudged not entitled to the possession of such apartments. An injunction to enjoin any sale of such stock and apartments is demanded together with damages.
Plaintiffs’ sole protection for occupancy of their apartments as statutory tenants is to be found in the State Residential Rent Law (L. 1951, ch. 443, as amd. by L. 1953, chs. 320, 321). Under that statute and regulations issued pursuant thereto, statutory tenants of a building co-operatively owned may not be evicted unless or until either (a) a particular proprietary lessee has owned the stock to his apartment for at least two years or (b) 80% of the apartments are occupied by proprietary owners.
Once a co-operative has been organized, the protection afforded to a statutory tenant is solely within the discretion of the State Rent Administrator, who, it is to be noted, has not even been made a party to this suit. A tenant of controlled premises is entitled to possession of his apartment, so long as he pays the rent due, subject to exceptions set forth in the statute and regulations. He may be removed only if a certificate of eviction is first obtanied from the State Rent Administrator. If plaintiffs can establish to the satisfaction of the Administrator that the plan adopted by defendants is being effectuated by means of illegal pressures, the Administrator would have the right to seek injunctive relief on defendants’ behalf, pursuant to section 11 of the rent statute. Indeed, if upon a hearing, claims of alleged improper methods employed to make effective the co-operative corporation are raised and established he would have the discretion to refuse to issue a certificate of eviction to the petitioning landlord. Even if the Administrator should issue a certificate of eviction, the tenant might still attack the regulations of the State Rent Administrator or any order made by him in an eviction proceeding, for the Adminis*167trator’s determination is always subject to review by this court under article 78 of the Civil Practice Act. (State Residential Rent Law, § 9.)
In the case of Judson v. Frankel (279 App. Div. 372) upon which plaintiffs seem to rely for their claim to relief by way of declaratory judgment, the court was dealing with a case where a co-operative corporation was to be formed in the future and the tenants were being requested to subscribe to an enterprise not yet in being. Here defendant 1070 Park Avenue Corporation, the co-operative enterprise, is in existence and more than half the apartments have already been sold to purchasers in good faith. Once the co-operative corporation has been organized and apartments therein have been sold, the proper area of inquiry is whether or not the landlord has established compliance with subdivisions 3 and 4 of section 55 of the Rent and Eviction Regulations of the Temporary State Housing Rent Commission. (Matter of Hoenig v. McGoldrick, 281 App. 663, motion for leave to appeal denied 304 N. Y. 987.)
Plaintiffs who are statutory tenants in possession have not yet been subjected to any proceedings under the rent control laws and the rent regulations (§ 55, subd. 3). This court should not be called upon to review the acts of the rent commission not yet undertaken or decided. The procedural remedies available to statutory tenants under the rent control laws are open and all claims of fraud, illegality and misrepresentation designed to secure the unlawful eviction of these statutory tenants may be raised when, as and if an application is made by the owners of proprietary leases to obtain a certificate of eviction from the State Rent Administrator. There plaintiffs may secure full relief to which they may be entitled.
In view of the fact that plaintiffs have an adequate remedy at law, the trial court properly dismissed their amended complaint after the close of their case. The judgment should be affirmed.
Breitel and Bastow, JJ., concur with Botein, J.; Cohn, J. P., dissents and votes to affirm, in opinion in which Bergan, J., concurs.
Judgment reversed and a new trial ordered in accordance with the opinion herein, with costs to the appellants to abide the event.