(concurring). Plaintiffs Joel and Linda Shapiro are the leasehold tenants of apartment 20H at 245 East 40th Street in Manhattan pursuant to a written lease commencing July 1, 1980 and terminating June 30, 1983. By letter dated June 10, 1981, plaintiffs, through their counsel, advised defendant landlord of their intention to *59sublet the apartment to one Mina Schottenfeld, effective August 1, 1981. After requesting and receiving additional information from the plaintiffs, defendant-appellant Dwelling Managers, Inc., the managing agent for the premises, advised the Shapiros that it. would not consent to the sublet. The basis for the rejection was, in part, that the plaintiffs’ primary residence was now the co-operative apartment which they had purchased at 345 East 83rd Street. The landlord thereupon offered to release plaintiffs from the remaining period of the lease.
The housing situation existing within the City of New York has been considered sufficiently serious to warrant remedial measures in the form of rent control and rent stabilization laws. Section YY51-1.0 of the Administrative Code of the City of New York declares that “unless residential rents and evictions continue to be regulated and controlled, disruptive practices and abnormal conditions will produce serious threats to the public health, safety and general welfare”. In this respect, “exorbitant and unconscionable rent increases * * * were being exacted under stress of prevailing conditions of inflation and of an acute housing shortage resulting from a sharp decline in private residential construction * * * that such increases and demands were causing severe hardship to tenants of such accommodations and were uprooting long-time city residents from their communities”. (Administrative Code, § YY51-1.0.) In the context of a housing market characterized by a severe shortage of available accommodations and high rents, the Legislature enacted section 226-b of the Real Property Law to enable tenants to relocate temporarily without forcing them to choose between the equally unattractive alternatives of losing their apartments or making double rent payments.
This court has construed section 226-b of the Real Property Law to provide that if the landlord unreasonably withholds permission to a proposed sublease, the landlord shall be deemed to have consented thereto. (Lexann Realty Co. v Deitchman, 83 AD2d 540; see, also, Conrad v Third Sutton Realty Co., 81 AD2d 50.) In the instant matter, however, the issue is whether a landlord’s refusal to agree to a sublet is unreasonable where it is predicated upon the *60undisputed fact that the apartment involved is no longer the tenants’ primary residence.
An examination of the applicable rent control and rent stabilization statutes indicates that the protections afforded therein were indeed intended to benefit tenants with regard to their primary residences. Thus, section 5 of the Local Emergency Housing Rent Control Act (L1962, ch 21, § 1), which provides the authority for local rent control legislation, states, in effect, that where a particular housing accommodation is not occupied by a tenant as a primary residence, the appropriate city agency may, upon application of the landlord, issue an order decontrolling that apartment. Similarly, section 54 of the Code of the Rent Stabilization Association of New York City, Inc. establishes a procedure whereby the owner may apply to the Conciliation and Appeals Board for a determination that a dwelling unit is not being used as a primary residence and, upon such a finding, may refuse to renew the lease and evict the tenant. Clearly, it was not the purpose of section 226-b of the Real Property Law to facilitate persons who have permanently moved elsewhere in retaining their old apartments in order to derive financial gain or to assist friends or relatives.
Accordingly, where the tenant, as is the case here, has a primary residence other than the apartment in question, the landlord, in offering to release the tenant from further obligations under the lease, cannot be deemed to unreasonably withhold his or her consent under section 226-b of the Real Property Law. The tenants, therefore, are not entitled to compel the landlord to accept the proposed sublease.
Thus, the order and judgment (one paper) of the Supreme Court, New York County (Maresca, J.), entered on November 10, 1981, which declared that the defendants had unreasonably withheld consent to the sublease and directed the defendants to consent thereto in writing, should be reversed on the law and the complaint dismissed.