(concurring). While I agree with my brother Silverman that a reversal is mandated, I would limit my concurrence to the procedural ground that a motion for summary judgment under CPLR 3212 will lie only “after issue has been joined” (CPLR 3212, subd [a]). For that reason I find it unnecessary to decide whether the factual dissimilarities between this case, on the one hand, and Conrad v Third Sutton Realty Co. (81 AD2d 50, mot for lv to opp den 55 NY2d 601) and Lexann Realty Co. v Deitch*58man (83 AD2d 540), on the other, require that a different result be reached in this case.
I am hesitant, at this time, to enter into any discussion of the merits for, underlying this controversy, although unmentioned by either party or in Justice Silverman’s opinion, there remains an undecided question: whether a landlord of residential premises who accepts an assignment or sublease for the balance of the term of the prime lease (actually an assignment) under compulsion of section 226-b of the Real Property Law is thereby required to recognize the assignee or subtenant as the “tenant in occupancy” under section 60 of the Code of the Rent Stabilization Association of New York City, Inc. and is, by reason thereof, compelled to offer him a renewal lease. The Rent Stabilization Law (Administrative Code of City of New York, § YY51-6.0, subd c, par [9]) provides for such renewal, with certain limited exceptions not here applicable. Section 60 of the Code of the Rent Stabilization Association of New York City, Inc., adopted pursuant to law, requires that the landlord shall notify “the tenant in occupancy” not more than 150 days and not less than 120 days prior to the expiration of his lease of his right to renew. Whether an assignee or sublease is a “tenant in occupancy” within the meaning of section 60 has not, to my knowledge, yet been determined by the Conciliation and Appeals Board. Should the prime lessee’s right to assign or sublet be established at trial the issue of renewal will then be ripe for decision by CAB. If that issue be determined adversely to the prospective sublessee, it will certainly limit the desirability of other such assignments or subleases in the future, thus obviating many of the conflicts now presented to the court under section 226-b of the Real Property Law. In sum, I think it unwise to decide that question, sub silentio, in the guise of an interpretation of section 226-b of the Real Property Law.