At all times, both when the association drew the initial code and, subsequently, when it proposed changes, the city's official Housing Development Administration (now its Department of Housing Preservation and Development), in which resided over-all supervision of the regulatory process, had to give approval (see Administrative Code, § YY51-6.0, subd b, par [2]; subd c). It was pursuant to this procedure that the code, even after chapter 576 was passed, provided that it would apply to those dwelling units "located in any Class A multiple dwelling" (Code of Real Estate and Stabilization Assn. of New York City, § 2, subd [f]; emphasis added). As the Appellate Division put it comprehensively in Axelrod v Starr ( 52 A.D.2d 232, 236, affd 41 N.Y.2d 942), the State "[continued] the old provisions of section YY51-3.0 which had existed since 1969". In the face of all this, that neither the State nor the city in all this time had taken any action to upset the practical construction that has been in force is most strongly suggestive that it truly reflects the intention of its sponsors (see Engle v Talarico, 33 N.Y.2d 237, 242).
"Ordinarily, courts will defer to construction given statutes and regulations by the agencies responsible for their administration, if said construction is not irrational or unreasonable" (Matter of Albano v Kirby, 36 N.Y.2d 526, 532). In an effort to differentiate between this case and Axelrod v Starr ( 52 A.D.2d 232, affd 41 N.Y.2d 942) and Krauss v Perry ( 53 A.D.2d 578) upon which respondents rely as controlling, we find that Axelrod holds that housing accommodations financed by loans from public agencies are subject to the New York City Rent Stabilization Law, and the rent guidelines established thereto, during the period that the Emergency Tenant Protection Act of 1974 is applicable within the City of New York. The case here differs from Axelrod in that the present housing accommodations were not financed by agency loans. Housing accommodations such as condominiums, co-operatives and Class B dwellings are not specifically exempted by the ETPA but are exempted by the Rent Stabilization Law. Thus, they are still exempt from regulation, though not specifically exempted by the Emergency Tenant Protection Act.
DHCR does not have exclusive jurisdiction over the questions raised in this action. On the contrary, it is well settled that courts are empowered to determine the rent-controlled status of a dwelling unit (Christy v. Lynch, 259 A.D.2d 324, 326, 686 N.Y.S.2d 431, 432 [1st Dept. 1999], citing Swift v. 130 West 57th Corp., 26 N.Y.2d 714, 716, rearg denied 26 N.Y.2d 883; see, Axelrod v. Starr, 52 A.D.2d 232, 233 [1st Dept. 1976], affd 41 N.Y.2d 942; Administrative Code § 26-413[d][2]). As to the Waterside defendants' remaining jurisdictional arguments, "[w]here a court has concurrent jurisdiction with an administrative agency to adjudicate a particular controversy, the doctrine of 'primary jurisdiction' generally enjoins the court from deciding matters within the administrative agency's jurisdiction, 'particularly where the agency's specialized experience and technical expertise is involved'" (Rutherford Tenants Corp. v. Schmidt, N.Y.L.J., Aug. 3, 1994, at 26, col 3 [Civ. Ct, N.Y. County] [J. Friedman], quoting (Sohn v. Calderon, supra, 78 N.Y.2d, at 768 [remaining citations omitted])
"Under this grant of authority, the Supreme Court `is competent to entertain all causes of action unless its jurisdiction has been specifically proscribed'" (supra, at 766, quoting Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 166 [1967]). DHCR does not have exclusive jurisdiction over the questions raised in this action. On the contrary, it is well settled that courts are empowered to determine the rent-controlled status of a dwelling unit (Matter of Christy v Lynch, 259 AD2d 324, 326 [1st Dept 1999], citing Swift v 130 W.57th Corp., 26 NY2d 714, 716, rearg denied 26 NY2d 883 [1970]; see, Axelrod v Starr, 52 AD2d 232, 233 [1st Dept 1976], affd 41 NY2d 942 [1977]; Administrative Code § 26-413 [d] [2]). As to the Waterside defendants' remaining jurisdictional arguments, "[w]here a court has concurrent jurisdiction with an administrative agency to adjudicate a particular controversy, the doctrine of `primary jurisdiction' generally enjoins the court from deciding matters within the administrative agency's jurisdiction, `particularly where the agency's specialized experience and technical expertise is involved'" (Rutherford Tenants Corp. v Schmidt, NYLJ, Aug. 3, 1994, at 26, cols 3, 4 [Civ Ct, NY County, Friedman, J.], quoting Sohn v Calderon, supra, 78 NY2d, at 768).
The Act provided that upon the declaration of an emergency, all apartments which had theretofore been destabilized or exempt from rent stabilization — including apartments which had become vacant on or after July 1, 1971 — were to be subject to the RSL. 1974 Laws of New York, Ch. 576 §§ 2, 4. Effective July 1, 1974, the New York City Council implemented the legislation, determining the existence of a public emergency for all classes of housing accommodations in New York City subject to control by the ETPA. N.Y.C. Council Resolution 276. See Axelrod v. Starr, 52 A.D.2d 232, 383 N.Y.S.2d 31, 33 (App.Div. 1st Dept. 1976); Perth Realty Company v. Dovoll, supra. The consequence, for purposes of the present case, is that Gramercy Spire apartments became fully subject to the provisions of the RSL. As Associates acknowledges, until the local rent control laws were preempted by HUD in respect to Gramercy Spire Apartments on April 6, 1976, Associates assumed that it was legally bound to comply with — and did comply with — both the RSL and ETPA (Associates' Answer at 3, ¶ 10; Exhibit G annexed to Associates' motion).
W. Bernard Richland, Corporation Counsel (Bernard Burstein and L. Kevin Sheridan of counsel), for respondent. Order affirmed, with costs, on the opinions by Mr. Justice NATHANIEL T. HELMAN at Special Term and Mr. Justice SAMUEL J. SILVERMAN at Appellate Division ( 52 A.D.2d 232). Concur: Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE.
Those orders were authorized by the Rent Control Law ( see Administrative Code of City of NY § 26-403 [e] [2] [i] [2]). As conceded by petitioners, the apartments became rent-stabilized with the enactment of the Emergency Tenant Protection Act of 1974 (ETPA), which applied to all housing accommodations that were "heretofore or hereafter decontrolled, exempt, not subject to control, or exempted from regulation and control" under the existing Local Emergency Housing Rent Control Act of 1962 ( see ETPA § 3 [McKinney's Uncons Laws of NY § 8623 (a) (L 1974, ch 576, sec 4, § 3, as amended)]). The New York City Council's incorporation of ETPA's language into the protections of rent stabilization was "a clear declaration that both the State Legislature and the City Council intended that to the extent that the Emergency Tenant Protection Act applied, it should supersede pre-existing exemptions" ( Axelrod v Starr, 52 AD2d 232, 235, affd 41 NY2d 942). ETPA's applicability to temporarily decontrolled apartments removed such apartments from coverage under the preexisting law, in the absence of any applicable exclusion ( see Matter of Zeitlin v New York City Conciliation Appeals Bd., 46 NY2d 992). Accordingly, the apartments in question are no longer subject to reversion to rent-control status upon cessation of the condition of decontrol. [Prior Case History: 23 Misc 3d 1132(A), 2009 NY Slip Op 51046(U).]
"(c) housing accommodations in buildings in which rentals are fixed by or subject to the supervision of the State Division of Housing and Community Renewal under other provisions of law or the New York State Urban Development Corporation, or, to the extent that regulation under this act is inconsistent therewith aided by government insurance under any provision of the National Housing Act" ( 9 NYCRR 2500.9 [b], [c]). In Axelrod v. Starr ( 52 A.D.2d 232, 237, affd 41 N.Y.2d 942 on opn of Silverman, J., at App. Div.) the Appellate Division, First Department, interpreting these provisions, held that certain buildings allegedly encumbered by Federally insured mortgages assigned to Federal agencies were subject to rent-stabilization regulations, since, under the ETPA, "housing accommodations financed by loans from public agencies are subject to the Rent Stabilization Law" (see also, Stoneridge Apts., Co. v. Lindsay, 303 F. Supp. 677). Housing owned or operated by a public housing agency with "section 8" funds would be exempt from rent stabilization under 9 NYCRR 2500.9 (b) (see, Sidberry v. Koch, 539 F. Supp. 413).
This establishment of 1974 as a base date has some support (see, 129 E. 56th St. Corp. v Harrison, 122 Misc.2d 799; 123 E. 18th St. Corp. v Gisler, 113 Misc.2d 718). A contrary and more persuasive view is expressed in Thomas Loft Tenants Assoc. v Lawrence Co. ( 117 Misc.2d 360, 364), and we concur with its reasoning. The purpose of the ETPA being to extend the protection of rent stabilization in the face of a declared emergency brought about by housing shortages and their attendant problems (see, Uncons Laws § 8622; Axelrod v Starr, 52 A.D.2d 232, affd 41 N.Y.2d 942), it is best served by following the plain language of the statute and refraining from supplying an uncalled for base date that would only restrict its purpose. The ETPA also exempts from its coverage "housing accommodations in * * * buildings substantially rehabilitated as family units on or after January first, nineteen hundred seventy-four" (Uncons Laws § 8625 [a] [5]). Special Term held this exemption applicable because this building was not rehabilitated until 1979. At a quick glance, this seems correct.
It has been held that the mailing of a notification pursuant to section 60, where the tenant completed it and returned it to the landlord, did not constitute the tender of a renewal lease which would preclude a subsequent nonprimary residency proceeding ( Matter of Dennis v Conciliation Appeals Bd., Supreme Ct, New York County, March 3, 1982, aff'd 90 A.D.2d 693, mot. for lv. to app den. 58 N.Y.2d 602; see, also, Matter of Friedman v Conciliation Appeals Bd., NYLJ, Dec. 20, 1977, p. 5, col 3, aff'd 63 A.D.2d 943, mot. for lv. to app den. 45 N.Y.2d 709). Even assuming, arguendo, that a valid renewal lease agreement between the parties is in existence, the Supreme Court still retains the power to adjudicate a possible statutory exemption arising under section 5 of the ETPA (see Axelrod v Starr, 52 A.D.2d 232; La Guardia v Cavanaugh, 53 N.Y.2d 67). Such a declaration would have immediate and substantial impact upon the rights of the parties.