The record demonstrates that the petitioners secured a declaratory ruling as is required by section 205 of the State Administrative Procedure Act as a condition precedent to a judicial proceeding for a review of rules. Section 204 of the State Administrative Procedure Act expressly provides that declaratory rulings are reviewable in CPLR article 78 proceedings. Accordingly, the CPLR article 78 proceeding was properly commenced and the additional specific issues as to the validity of a regulation can properly be considered in relation to the declaratory ruling. There is an adequate and exclusive remedy provided for the instant proceeding and that is within the confines of CPLR article 78. Therefore, Special Term erred in dismissing the proceeding.
On the merits, there is nothing to suggest that the regulation or the declaratory ruling is contrary to the statutes as enacted by the Legislature. Unlike the situation in the recent case of New York State Cable Tel. Assn, v State Tax Comm. (59 AD2d 81) the regulation herein is not at odds with the common meaning of the statute and there are no prior judicial interpretations of the tax statute at odds with the regulation. Accordingly, the "presumption” referred to in the Cable case and relied upon by the majority herein has been rebutted. There is no precedent for judicially upholding a presumption to the extent of allowing a regulation to nullify a statute. The dismissal of the petition should be affirmed on the merits.
It is worth noting that the New York State Tax Commission should be free to re-examine its rules and regulations and, if times and circumstances warrant, to update the same when the contemplated changes, as in the present instance, are within the framework, purpose and intent of the governing statute. If need be, it could logically be argued that the ruling *312herein was not necessarily a new rule, but rather an interpretation and implementation of an existing rule and regulation.
Finally, as to standing, in this particular case an individual corporation which must comply with the declaratory rules is a petitioner and, for that reason, I would not dismiss the proceeding for a lack of standing.
The judgment should be affirmed.
Kane, J. R, and Main, J., concur with Mikoll, J.; Herlihy, J., dissents and votes to affirm in an opinion; Larkin, J., not taking part.
Judgment reversed, on the law and the facts, without costs; petition reinstated, and judgment directed to be entered in favor of petitioners declaring Declaratory Ruling 77-01 of the State Tax Commission null and void insofar as it declared standard elevator and escalator maintenance contracts, classified therein as Type II contracts, subject to New York State and local sales taxes.