The facts, procedural history, relevant legal authorities and controlling statute are set forth comprehensively and clearly in Justice Sullivan’s opinion. I agree with almost everything that is set forth in his opinion, and as to that with which I disagree, which presents the dispositive issue on this appeal, I agree that the opinion presents a persuasive analysis supporting the result reached. Nonetheless, on balance, I have come to think that the alternative interpretation of the statute is more probably correct.
The controlling statutory provision (Administrative Code of City of New York § Y51-6.0 [b] [1], as amended by L 1984, ch 234, § 1) provides, in relevant part, as follows:
"The city rent agency shall issue * * * an order [granting a certificate of eviction] whenever it finds that:
"The landlord seeks in good faith to recover possession of a *242housing accommodation because of immediate and compelling necessity for his own personal use and occupancy or for the use and occupancy of his immediate family provided, however, that this subdivision shall not apply where a member of the household lawfully occupying the housing accommodation is sixty-two years of age or older, has been a tenant in a housing accommodation in that building for twenty years or more, or has an impairment which results from anatomical, physiological or psychological conditions, other than addiction to alcohol, gambling, or any controlled substance, which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques, and which are expected to be permanent and which prevent the tenant from engaging in any substantial gainful employment.”
The issue presented is whether an order granting a certificate of eviction validly issued under the authority of the above section, and issued at a time when a tenant did not come within any specific exemption, and after administrative appellate procedures had been exhausted, should be vacated because the passage of time during judicial proceedings commenced by a tenant to invalidate the order has brought the tenant within one of the listed exemptions.
What is immediately apparent from an analysis of the section is that it is entirely concerned with defining the circumstances under which the city rent agency shall issue a certificate of eviction. Nothing whatever is said about the legal consequences of the passage of time subsequent to the appropriate issuance of a certificate of eviction that brings a tenant within an exemption not applicable to him at the time the city rent agency made its final determination. This omission seems to me significant.
The agency itself has concluded that the intended remedial purposes of the amendment that introduced the exemptions would best be served by allowing the exemption to become effective after the issuance of the certificate and during the course of court proceedings that have not yet resulted in a final judgment of eviction. Recognizing the deference appropriately given to the agency’s interpretation of a statute with which in its practical effects it is most familiar, I am not persuaded that the interpretation of the statute which it has adopted, and which finds no support in the language of the statute, in fact furthers the purposes of the statute.
On the contrary, it seems to me clearly to alter the clear *243meaning of that which is set forth in the statute because in reality it brings within the exemption tenants not in fact embraced in the exemption, and who, as in this case, were tenants for some time less than that contemplated by the statute. The extent to which it abbreviates the time within which a tenant may be eligible for the exemption is indeterminate, but experience suggests that it may be a very considerable time indeed, depending on such circumstances as court congestion, the attitude of individual Judges to the problem presented, and the ingenuity of counsel in protracting judicial proceedings that were in fact legally without merit at the time they were commenced.
Moreover, it presents an unusual and awkward situation for courts concerned with reviewing the legality of an administrative action that was in fact correct at the time it was taken. It is not difficult to envisage a situation in which an appeal is taken from a Trial Term order correctly sustaining the issuance of a certificate of eviction where tenant’s counsel has quite sensibly taken advantage of every possibility for delaying the determination of the appeal, hoping that time will bring his client within an exemption, and in which this court is about to sustain the trial court’s determination, and learns either by letter or telephone that time has brought the tenant within the exemption.
It seems to me unlikely that the Legislature intended to provide tenants in the described situation with so powerful a motivation for commencing meritless judicial proceedings, and for delaying their ultimate determination. If indeed such an unusual result were contemplated, it does not seem unreasonable to suppose that the Legislature would have addressed the issue directly rather than set forth the exemptions within the context of a direction to the city rent agency. Nor do I think the problem presented by the construction accepted by the agency can be addressed realistically through independent determinations by the court in each case as to whether the legal challenge to the agency’s action had a colorable basis at the time it was undertaken.
I am not persuaded that the Court of Appeals decision in Matter of Guerriera v Joy (64 NY2d 747), relied on by the agency, and in Matter of Cirella v Joy (69 NY2d 973) cited in Justice Sullivan’s opinion, provide any meaningful support for the interpretation of the statute adopted by the agency and accepted in Justice Sullivan’s opinion.
*244In both Guerriera and Cirella (supra), the Court of Appeals was presented with a challenge to agency actions that occurred prior to the passage of statutory provisions intended to apply to all tenants still in possession and the effect of which the agency had not had an opportunity to consider in making the déterminations in issue. In this case, we are confronted with an agency determination made at a time the relevant statute was in effect, and which, as we are agreed, was in accord with the applicable statute as it was then, and as it is now. I do not believe that the decisions in Guerriera and Cirella, either as a matter of logic or policy, buttress a conclusion that rests on a misinterpretation of the plain meaning of the relevant statute, and that invites tenants to seek judicial relief on meritless grounds from administrative determinations that were clearly correct when made, further invites tenants to appeal from clearly correct trial court determinations, and encourages tenants to avail themselves of every possible means of delay throughout the judicial process in the hope that the passage of time might bring them within one or more of the several statutory exemptions before entry of a final judgment.
Let me make it clear that I do not believe the foregoing analysis applies to the final exemption set forth in the statute, which occurs where the tenant has suffered an impairment, expected to be permanent, that prevents him from engaging in any substantial gainful employment. If, subsequent to the issuance of a certificate of eviction, such a condition should develop — a condition that could not have been anticipated at the time of the administrative proceedings, and that could not have motivated the tenant to seek judicial review in the hope that the passage of time during judicial proceedings would bring the tenant within an exemption — it would seem to me the clear obligation of the agency, on an appropriate showing, to reopen the matter administratively in an effort to determine whether the claimed condition brings the tenant within the impairment exemption.
Although not precisely analogous, the situation presented by a claim following a certificate of eviction that the tenant has sustained the described impairment would be comparable to that presented if it should develop following the issuance of a certificate that the landlord and his family, notwithstanding their prior claim of "immediate and compelling necessity” for occupancy of the tenant’s apartment, had in fact secured alternative residential accommodations. Both situations would *245call for further administrative hearings to resolve the factual issues presented, and would present no issue of law to the courts except to the extent to which it was alleged in appropriate form that the agency had failed to discharge its obligations.
Accordingly, the order and judgment of the Supreme Court, New York County (Burton Sherman, J.), entered March 27, 1987, dismissing the petition in a CPLR article 78 proceeding seeking to vacate a determination of the New York State Division of Housing and Community Renewal granting an application for a certificate of eviction, and also granting a cross motion for an order tolling the statutory exemption provision protecting from eviction tenants occupying a housing accommodation for 20 years or more, should be affirmed.
Murphy, P. J., and Ellerin, J., concur with Sullivan, J.; Sandler, J., dissents in a separate opinion.
Order and judgment (one paper), Supreme Court, New York County, entered on or about March 27, 1987, reversed, on the law, without costs and without disbursements, the petition granted and the certificate of eviction vacated.