(dissenting). The facts are fairly set forth in the majority opinion.
I agree with that part of the majority opinion concluding that the Attorney-General may refuse to accept for filing a cooperative conversion offering plan which falsely represents that the offering is being made on an eviction basis. I also agree that the Attorney-General did not act beyond his authority in promulgating 13 NYCRR 18.5 (e) (6) (vi) (c), preventing a sponsor from advancing his own eviction plan by having his own subscription agreement count toward the number needed for approval. I am also in agreement that the sponsor in this case, Mr. Levine, is in no danger of being evicted from the apartment he owns in the subject building and is, therefore, not entitled to take advantage of the senior citizen’s exemption, which exemption would exclude him from, and thereby enable him to reduce solely for the purpose of advancing his purported eviction plan, the base count, i.e., the total number of bona fide tenants in occupancy of all dwelling units, 51% of whom must execute subscription agreements for *288an eviction plan to become effective. (See, General Business Law § 352-eeee [2] [d] [i].)
Having reached these conclusions, most particularly that the Attorney-General could validly promulgate a regulation preventing the sponsor from having his subscription count toward the total needed for eviction plan approval, and that the petitioner is not entitled to be excluded from the base count by reason of his advanced age, I am at a loss to understand how the majority then concludes that the Attorney-General has acted arbitrarily and capriciously in refusing to accept petitioner’s plan as an eviction plan.
There is no question that petitioner Levine is not entitled to have his subscription count toward the number needed for approval because he is a principal of the sponsor (13 NYCRR 18.5 [e] [6] [vi] [c]), and, in any event, his apartment is not even included in the offering so there is no prospect of his executing a subscription agreement, much less of his agreement being counted towards approval. It is settled then that the bona fide tenants of only 3 of the 4 occupied units in the subject building will be able to have their subscriptions, should they execute them, count towards approval.
The question which divides the court and upon which this appeal turns, is whether the base count should be three or four. The sponsor claims, and the majority has held, that it should be three, in which case only two subscriptions will be necessary to constitute the 51% required for eviction plan approval. The Attorney-General maintains and I agree, that the proper base count is four, making the subscription of each of the three offeree tenants in occupancy necessary for approval of the plan. This latter view would effectively render the plan a noneviction plan since the refusal of any one tenant to execute a subscription agreement would necessarily cause the plan to fail.
General Business Law § 352-eeee (2) (d) (i) states quite clearly concerning eviction plans that, "(i) [t]he plan may not be declared effective unless at least fifty-one percent of the bona fide tenants in occupancy of all dwelling units in the building * * * (excluding, for the purposes of determining the number of bona fide tenants in occupancy * * * eligible senior citizens and eligible disabled persons) shall have executed and delivered written agreements to purchase under the plan pursuant to an offering made in good faith without fraud and with no discriminatory repurchase agreements or other dis*289criminatory inducements.” (Emphasis supplied; see also, 13 NYCRR 18.3 [r] [6] [ii] [a].) Petitioner Levine does not seriously dispute that he is a bona fide tenant in occupancy in the subject building. Indeed, as the Attorney-General points out, if Levine were not a bona fide tenant in occupancy the plan would have to be rejected for failure to meet statutory anti-warehousing provisions, since the resulting long-term vacancy rate of 25% would be far in excess of the 10% limitation established by General Business Law § 352-eeee (2) (e). As Levine is a bona fide tenant in occupancy, General Business Law § 352-eeee (2) (d) (i) requires that his unit be included in the base count, unless he falls within one of the statutorily prescribed exemptions. The majority agrees that Levine may not take advantage of the senior citizen’s exemption, but without citing any other applicable exemption would nevertheless have the Attorney-General exempt him, finding the Attorney-General’s failure to do so arbitrary and capricious as a matter of law.
Not only do I think that the Attorney-General’s inclusion of the petitioner’s unit in the base count was proper, I think that his failure to include petitioner’s unit would have been manifestly improper given the clear wording of the statute and the regulations promulgated pursuant thereto, the validity of which is not here challenged. I see no basis whatsoever for effectively requiring, by judicial fiat, that the Attorney-General exclude the petitioner’s unit from the base count.
Contrary to the view expressed by the majority, the Attorney-General is not required to treat a sponsor-tenant as a bona fide tenant for all purposes. Indeed, the majority concedes that the Attorney-General properly promulgated 13 NYCRR 18.5 (e) (6) (vi) (c) preventing the sponsor from having his subscription count towards the total needed for approval, and so, implicitly acknowledges that some differential treatment of a sponsor-tenant in the context of an eviction plan is proper. The majority apparently feels, however, that when, in addition to preventing the sponsor from having his subscription count, the Attorney-General also includes the sponsor-tenant’s unit in the base count, the differential treatment goes too far. Although the argument has some superficial appeal, it is important not to lose sight of the fact that the question before the court is not whether the Attorney-General’s actions herein accord with our subjective notions of what is fair, but whether his actions have been arbitrary and capricious. It cannot be said that where, as here, the Attorney-General has *290scrupulously followed the direction of the governing statute and regulations, that he has acted either arbitrarily or capriciously, even though what may be characterized as an "anomaly” results.
Moreover, an accurate perception of the reality of the present situation does not justify the view that the Attorney-General’s action, if left undisturbed, will cause an anomaly or any great unfairness to be done the petitioner. All that is at stake in this case, at least from the petitioner’s perspective, is the petitioner’s claimed right to convert his building to cooperative ownership on an eviction basis; sustaining the position of the Attorney-General herein, will not prevent petitioner from converting his premises on a noneviction basis with much the same financial result as would obtain if the conversion were pursuant to an eviction plan. What is, therefore, plain is that petitioner’s insistence upon proceeding with the conversion by means of an eviction plan is rooted in his desire to evict his third-floor tenants; he has a history of adversarial dealings with these tenants but thus far has been unable to dispossess them because they are protected under article 7-C of the Multiple Dwelling Law, otherwise known as the Loft Law. Petitioner incurs relatively little real detriment if nonpurchasing tenants are afforded every protection, consistent with the applicable statutes and regulations, against the extreme hardship eviction would work upon them. That is precisely what the Attorney-General has done in this case, and I can see no good reason — nor has this court articulated one — why the Attorney-General’s action should not be upheld. The Attorney-General’s action is particularly appropriate here where there is strong indication that specific tenants have been targeted for eviction for reasons that are questionable at best.
Accordingly, the judgment of the Supreme Court, New York County (C. Beauchamp Ciparick, J.), entered September 21, 1987, which denied and dismissed the petitioner’s article 78 petition, should be affirmed.
Sandler, Milonas and Kassal, JJ., concur with Sullivan, J.; Murphy, P. J., dissents in an opinion.
Judgment, Supreme Court, New York County, entered on or about September 21, 1987, reversed, on the law, without costs *291and without disbursements, the petition reinstated and the same granted to the extent of remanding the matter to the Attorney-General for further consideration of the proposed offering as an eviction plan, not inconsistent with this court’s opinion.