(concurring). I would reverse the order appealed from and deny plaintiffs’ motion.
The facts are sufficiently stated in the memoranda of Justices Milonas and Kassal.
Plaintiffs’ motion, served with the summons and complaint, is essentially one for summary judgment asking for the full relief that the complaint asks; and the court granted that motion and relief and final judgment.
A motion for summary judgment cannot be made until after issue has been joined. (CPLR 3212, subd [a].) At the time this motion was made, issue had not been joined. Accordingly, it was improper to grant the motion.
If I were not reversing on this ground, I would reverse and deny the motion on the merits, giving plaintiffs tenants the option, if they wished, to be released from the lease pursuant to subdivision 1 of section 226-b of the Real Property Law.
*53The case again presents perplexing problems of the rights of the parties under that statute.
The statute provides in part:
“1. A tenant renting a residence in a dwelling having four or more residential units shall have the right to sublease or assign his premises, subject to the written consent of the landlord given in advance of the sublease or assignment. Such consent shall not be unreasonably withheld. If the landlord unreasonably withholds consent for such sublease or assignment, the landlord must release the tenant from the lease upon request of the tenant.
“2. * * * Within thirty days after the mailing of the request for consent, or of the additional information reasonably asked for by the landlord, whichever is later, the landlord shall send a notice to the sender thereof of his consent or, if he does not consent, his reasons therefore. Landlord’s failure to send such a notice shall be deemed to be a consent to the proposed subletting or assignment. If the landlord consents, the premises may be sublet or assigned in accordance with the request, but the tenant thereunder, shall nevertheless remain liable for the performance of tenant’s obligations under said lease.” (Real Property Law, § 226-b.)
The precise issue in the present case is (where the lease contains a provision against sublet or assignment without landlord’s consent and no provision that landlord will not unreasonably withhold his consent) whether (a) as tenants contend, a sublease or assignment is valid, notwithstanding the landlord’s rejection, where the landlord has given written notice of his rejection and stated the reasons therefor, as required by subdivision 2 of the statute, but the court deems his refusal to be unreasonable; or (b) as landlord contends, such claimed unreasonableness only gives the prime tenant the right to be released from the obligations of the lease, which landlord is willing to do anyhow.
In two opinions the language of the majority of this court favors tenants’ present position. (Conrad v Third Sutton Realty Co., 81 AD2d 50; Lexann Realty Co. v Deitchman, 83 AD 2d 540.) Both cases, however, are distinguishable on *54the facts from the present case. In the Conrad case, the landlord did not state his reasons for the refusal to consent to the sublet, and thus, consent was deemed to have been made under subdivision 2 of section 226-b of the Real Property Law. In the Lexann case, the lease provided that the landlord’s consent to sublet shall not be unreasonably withheld. Separate concurrences in each case rested precisely on the presence of those distinguishing facts. In the present case, unlike Conrad, the landlord did give his reasons for refusal to consent to the sublet, and unlike Lexann, the lease does not contain a provision that the landlord will not unreasonably withhold his consent.
In my view, a fair reading of the statute leads to these conclusions:
Subdivisions 1 and 2 of the statute each provide separate remedies for separate predicates.
Subdivision 1, an essentially substantive provision, provides that if the landlord unreasonably withholds consent, “the landlord must release the tenant from the lease upon request of the tenant.” Subdivision 1 contains no provision that such unreasonable withholding of consent shall be deemed a consent to the proposed sublet or assignment, or giving tenant the right to force a sublet or assignment on the landlord.
Subdivision 2, an essentially procedural provision, provides that if the landlord fails to follow the requisite procedure, including particularly a notice of his refusal stating his reasons therefor, that shall be deemed a consent to the proposed subletting or assignment, “but the tenant thereunder, shall nevertheless remain liable for the performance of tenant’s obligations under said lease.”
In view of the sharp delineation of separate consequences for separate predicates in each of the two subdivisions, I think it is a strained reading to impute the consequences of a violation of subdivision 2 to a situation governed by subdivision 1, i.e., to hold that violation of the obligation not to withhold consent unreasonably (the violation of subdivision 1) leads to forced consent (the consequence of the procedural violations specified in subdivision 2).
*55If the consequence of a violation of subdivision 1 is the same as for a violation of subdivision 2, how shall we reconcile the explicit provision of subdivision 1, that the tenant shall be released from the lease upon his request, with the explicit provision of subdivision 2, that the tenant shall nevertheless remain liable? (On the other hand, if the landlord is in violation of both subdivisions 1 and 2, i.e., his refusal is unreasonable and he also fails to comply with the procedural requirements of subdivision 2, then the tenant is presumably entitled to the remedies specified under both subdivisions. But as the remedies are inconsistent with each other, the tenant should have his choice. That is not the present situation.)
If the landlord violates only the provisions of subdivision 1 and not those of subdivision 2, the tenant should have only the remedy provided in subdivision 1. If the tenant is to have either release from his obligations or a forced sublease or assignment at the option or request of the tenant, why should subdivision 1 say only that the tenant may be released at his request? Clearly because that is the only remedy to the tenant.
Absent the last sentence of subdivision 1, giving the tenant the right to be released, it could well be argued that the tenant has a right to specific performance of the statutory obligation created by the preceding sentence, that the landlord shall not unreasonably withhold his consent. (Lexann Realty Co. v Deitchman, 83 AD2d 540, supra.) But I think the last sentence precludes that result.
The option to be released from his obligation under the lease is a form of relief given to the tenant precisely as partial compensation for the fact that he is not granted his request to sublet or assign. If unreasonable refusal to consent to the subletting or assignment becomes legally equivalent to consent to the tenant’s request to sublet or assign so that the tenant gets what he asked for, why should the tenant be given the option to be released from his obligations under the lease as subdivision 1 provides?
If the unreasonableness of the landlord’s refusal to consent (without the procedural violation of subdivision 2) is to have the same consequences as failure to comply with the procedural provisions of subdivision 2, i.e., forced con*56sent, the natural way to say it would be that if the landlord’s failure to consent is unreasonable, or if the landlord fails to comply with the procedures specified in subdivision 2, then the consequences specified in subdivision 2 shall follow; or alternatively, the statute could have said that if the landlord unreasonably withheld consent, or the landlord failed to comply with the specified procedures, the tenant shall have the choice of either being released from the lease or being entitled to enforce the sublease or assignment.
Instead, the statute contains the sharp division: If the consent is unreasonably withheld, the tenant shall be released; if the landlord does not follow the specified procedures, the sublease or assignment shall be effective and the tenant shall not be released.
To hold that even where the lease contains no provision against unreasonably withholding consent and the landlord complies with the procedural requirements of subdivision 2, the tenant has the right to sublet or assign, gives the tenant the opportunity to trade in apartments in the present tight market. (See Grayshaw v New Amsterdam Apts. Co., 106 Misc 2d 936, 940.) Further, both sides seem to assume that if the tenant has this right, then that includes the right to transfer to another the right to a renewal of the lease under the Rent Stabilization Code. If this be so (which we do not now decide), the tenant’s right to sublet or assign would become substantially equivalent to permanent ownership of the apartment with the right to the permanent control of the occupancy of the apartment and to profit from sale of that right (by assignment or successive sublets), all to the exclusion of the landlord. It seems unlikely that this would accord with the legislative intent.
The interpretation I have suggested does not take care of the tenant who needs to be temporarily away and wants to sublet and retain his apartment. Perhaps that is a flaw in the drafting of the statute. In any event, that is not this case. For here, the tenant has acquired another co-operative apartment to live in and the “sublet” is for the entire remaining term of the lease, i.e., an assignment.
*57That the statute might have provided that unreasonable failure to consent shall also be equivalent to consent does not alter the fact that it does not so provide. All legislation is the result of compromise, the resultant of many considerations and forces. Here the final legislative compromise is the particular statute we have. It may not be a model of logic (“a camel is a horse designed by a committee”) but it is the operative legislative action.
Of course if the lease provides that consent shall not unreasonably be withheld, then quite independently of the statute the tenant may sublet if the landlord unreasonably withholds his consent, and section 226-b does not take that right away from the tenant. (Cf. Lexann Realty Co. v Deitchman, 83 AD2d 540, supra.)
And equally, if a landlord reasonably withholds his consent (and does not violate the procedural provisions of subdivision 2), then the tenant acquires no additional rights, either under subdivision 1 of section 226-b of the Real Property Law or as a matter of contract law.
In the present case the lease contains no provision that the landlord shall not unreasonably withhold its consent, and the landlord gave notice with reasons. Thus, subdivision 2 is satisfied. The tenant has only the right under subdivision 1 to be released from the lease if the refusal is unreasonable.
We need not decide whether the refusal to consent here was reasonable or unreasonable, for the landlord has agreed that the tenants can be released from the lease, which is all the right that the tenants would have in my view, even if the landlord’s refusal to consent to the sublet or assignment was unreasonable.