I dissent and vote to affirm.
In a proceeding under section 4 (subd. 4, par. [a], cl. [1]) of the Emergency Housing Bent Control Law and subdivision 5 of section 33 of the Bent and Eviction Begulations of the Temporary State Housing Bent Commission, the intervenor appeals from the order entered September 21, 1961 annulling the order of the State Bent Administrator issued May 5,1961 and remanding the matter with the direction to apply the assessed value in the determination of the application.
The order herein entered March 2, 1961 directed the use of the current assessed valuation. Bespondent State Bent Administrator applied for leave to appeal from the order of March 2, 1961, and said application was denied on March 29, 1961. The intervenor did not apply for leave to intervene until May 15, 1961 when it cross-moved for such relief upon being served with *71the order to show cause why the order of the State Eent Administrator issued. May 5, 1961 should not he vacated and pending determination thereof staying the intervenor from collecting the increased rents resulting therefrom. The instant appeal of the intervenor is limited to the order of September 21, 1961; it does not purport to seek a review of the order entered March 2, 1961.
The holding of the majority, however, seems to nullify the order of March 2,1961, not under review at this time. Moreover, our holding in Matter of Brown, Harris, Stevens v. Abrams (2 A D 2d 376) precludes any such review.
On the undisputed facts, the sale price relied on is not ‘ ‘ unaffected by special circumstances ’ ’, within the meaning of section 4 (subd. 4, par. [a], cl. [1]) of the Emergency Housing Eent Control Law, in that the seller prepared the property for sale to a co-operative and the intervenor knowingly purchased the property for such purpose and the purchase contract obligated the seller pending closing of title not to rent vacant apartments. At the time of contract 14 apartments were vacant because of the seller’s policy since 1954 of refusing to rent vacant apartments. At the time of taking title there were 16 vacant apartments.
The policy of not renting vacant apartments in the circumstances of this matter is destructive of the underlying purpose of the Emergency Housing Eent Control Law to alleviate the acute shortage of dwellings and to prevent ‘ unjust, unreasonable and oppressive rents” as expressed in section 1 of the statute. “ [T]he primary purpose of the act is to prevent undue rent increases ”. (Matter of New York Univ. v. State Rent Comm., 304 N. Y. 124, 129.) Controlled accommodations may be withdrawn from the rental market. (Ibid; Emergency Housing Eent Control Law, § 10, subd. 4.) However, a sale price resulting from the inflationary tendency of a withdrawal of housing accommodations, concurred in and projected by the intervenor, towards the end of effectuating a co-operative may not be availed of as a basis for ‘ ‘ fair and equitable ’ ’ rent controls within the meaning and the purpose of the act. (Id. § 4, subd. 4, par. [a], cl. [1].)
The instant case is unlike Matter of Payson v. Caputa (9 A D 2d 226). In Payson there was no evidence of a policy of not renting vacant apartments prior to contract and the seller did not agree to refrain from renting vacant apartments pending the closing of title. The fact that the purchaser in Payson intended to convert to a co-operative did not affect its sale price which was the result of competitive bidding in an open market. *72Here the seller manipulated the property for the specific purpose of a sale to a co-operative and the intervenor joined in said plan thereby contributing to and effectuating the type of sale which the statute provides shall not be considered in arriving at the base valuation.
Breitel, J. P., Babin, Stevens and Eager, JJ., concur in Per Curiam opinion; McNally, J., dissents and votes to affirm in opinion.
Order entered on September 21, 1961 modified, without costs, and the provisions in the order inconsistent with the opinion Per Curiam of this court filed herein are stricken and the proceeding remanded to the Administrator to take further proof, in accordance with the views of this court, on the issue of whether the pertinent sale involved “ special circumstances” which affected the price, and, if necessary, to recompute the maximum rents on the basis eventually determined to be applicable. Settle order on notice.