I would affirm the order of the Appellate Term.
The issue in this case is whether, in a co-operative apartment house, a sublessee of an apartment from a proprietary tenant is entitled to the benefits of the Rent Stabilization Law (RSL) as against petitioner, the proprietary tenant.
The governing statute is the RSL (Administrative Code of City of New York, § YY51-3.0) as amended by the Emergency Tenant Protection Act (ETPA) (L 1974, ch 576). The section reads in part as follows:
"§ YY51-3.0 Application.
"This law shall apply to
"a. Class A multiple dwellings not owned as a cooperative or as a condominium, containing six or more dwelling units which:
"(1) were completed after February first, nineteen hundred forty-seven, except dwelling units (a) owned or leased by, or financed by loans from, a public agency or public benefit corporation * * *
"b. other housing accommodations made subject to this law pursuant to the emergency tenant protection act of nineteen seventy-four.”
It is the contention of petitioner that the present case falls within the exemption for multiple dwellings "owned as a cooperative or as a condominium” under subdivision a above.
I note, to begin with, that this is not a dispute between the proprietary corporation and the proprietary tenant but rather between a proprietary tenant and a sublessee who is in no sense a co-operator or the owner of a co-operative apartment. Between these two parties there is obviously not a co-opera*43tive-co-operator relationship but something much closer to a conventional landlord-tenant relationship. It makes no difference to the relationship between these parties whether the sublease is a sublease of an apartment in a co-operative building or in a conventional rental building. Passing that point the question remains whether the apparent exemption of co-operative multiple dwellings in subdivision a of section YY51-3.0 was removed on the implementation of subdivision b of section YY51-3.0 (by the adoption of the implementing resolution by the New York City Council).
In Axelrod v Starr (52 AD2d 232, affd on opn of this court and Special Term 41 NY2d 942), there was involved the question whether the exemption under subdivision a of dwelling units financed by loans of a public agency was removed by the implementation of subdivision b. This court said (p 234):
"Plaintiffs contend that their properties are exempt by reason of the exception contained in clause (a) of paragraph (1) of subdivision a quoted above; and that the provision of subdivision b making the law applicable to 'other housing accommodations made subject to this law pursuant to the emergency tenant protection act of nineteen seventy-four’ refers only to 'other’ housing accommodations, other than those exempted by subdivision a. Defendants city agencies contend that subdivision b makes the law applicable to 'other,’ in the sense of 'additional,’ accommodations, additional to those covered by subdivision a and specificially including those exempted from subdivision a.
"I think the defendants’ interpretation is correct.”
The opinion of the majority of this court stated the reasons for this conclusion and those reasons were presumably approved by the Court of Appeals as it affirmed on the opinion of this court and Special Term. In the circumstances, I think it is unnecessary to repeat those reasons but I refer to the discussion in the opinion in Axelrod v Starr (supra). Those reasons were reasons of statutory analysis, legislative history and legislative policy. In our opinion we said (p 235):
"It is apparent that both the Emergency Tenant Protection Act and the New York City Council resolution intended to extend rent regulation beyond that which existed immediately before the enactment of the Emergency Tenant Protection Act. * * *
"This seems to me to be a clear declaration that both the State Legislature and the City Council intended that to the *44extent that the Emergency Tenant Protection Act applied, it should supersede pre-existing exemptions.”
The same analysis leads to the conclusion that the exemptions for co-operatives contained in subdivision a were removed on the implementation of subdivision b. As in Axelrod v Starr (supra), I note that the ETPA, which added subdivision b, contained its own list of exceptions from the broad grant of authority in subdivision b (ETPA, § 5), and significantly cooperative apartments are not among those exceptions.
It is suggested that it is inappropriate to apply RSL to the present situation because the proprietary tenant cannot control the services in the apartment house, or the maintenance, or other expenses that the proprietary tenant will have to meet. But neither can a tenant who sublets his apartment in a rental building control the services. And the landlords of rental buildings clearly subject to the RSL cannot control their expenses; they are subject to the vagaries of the market, notably labor costs and the costs of fuel. But that does not exempt them from the RSL; it merely gives them a right to make a claim for higher rent in appropriate circumstances.
Finally, this is not a case of a proprietary tenant who wishes to recover possession of the apartment for his own occupancy.
Fein, J., concurs with Evans, J.; Markewich, J., concurs in an opinion; Silverman, J. P., dissents in an opinion.
Order, Appellate Term, Supreme Court, First Department, entered on May 31, 1977, reversed, on the law, without costs and without disbursements, and the judgment of the Civil Court reinstated.