Smith, J. (dissenting). The order and judgment (one paper)
of the Supreme Court which denied petitioners’ application pursuant to CPLR article 78 challenging respondent’s directive that they restore the windows in their apartment to their original condition and dismissed the petition should be affirmed. I, therefore, dissent.
The facts of this case are set out in detail at 137 AD2d 238 and they will not be repeated here. In that decision this court rejected the contention of the respondents that the individual *65petitioners, shareholders in a cooperative apartment and lessees of the apartment in question, lacked the capacity to maintain a proceeding against the Landmarks Preservation Commission (LPC) because any wrong committed was committed not against those individuals but against the cooperative corporation. The LPC, by order issued May 16, 1986, directed the individual petitioners to restore the windows in their apartment at 1030 Fifth Avenue to their original condition. This court held that the individual petitioners had a right to pursue their claims and remanded for proceedings consistent with the decision.
On remand the motion court rejected the arguments of the individual petitioners and upheld the determination of the respondent LPC that the windows be restored to their original condition.
On appeal petitioners raise two arguments. The first is that because they acted in good faith and reasonably relied on government records that they were not in an historic district, and thus no approval by the LPC was needed, the LPC should be estopped from directing them to restore the windows.
This is not one of those "rarest cases” (see, Matter of New York State Med. Transporters Assn, v Perales, 77 NY2d 126, 130) in which an estoppel may be invoked against a governmental agency acting in furtherance of its statutory duties on the basis of the agency’s own technical noncompliance with established procedure (see, Matter of Parkview Assocs. v City of New York, 71 NY2d 274, cert denied 488 US 801; see also, Matter of E.F.S. Ventures Corp. v Foster, 71 NY2d 359, 370). While there is no documentary showing that respondents filed a notice of designation with the Department of Buildings, petitioner’s failure to search other applicable records such as the City Register or to consult the LPC directly was a breach of their own duty to exercise reasonable diligence (Matter of Parkview Assocs. v City of New York, supra, at 282).
Petitioners’ second argument is that, on an arbitrary basis, they have been treated differently than allegedly similarly situated persons who occupy the fourteenth floor of the premises (petitioners occupy the fifth floor). The LPC directed that those windows be restored to their original condition only upon a sale of the shares applicable to that apartment.
There is no merit to petitioners’ contention. Not only had that tenant not been issued any notices of violation, but, as respondent found, the particular location of the unit on the
*66top floor in proximity to external elements disguised the nonconforming effect and presented an appearance different from petitioners’ unauthorized renovation. Respondent LPC’s "particular expertise” with respect to such judgments has frequently been noted by this court (see, Shubert Org. v Landmarks Preservation Commn., 166 AD2d 115, 120, Iv denied 79 NY2d 751). Moreover, the persons on the fourteenth floor had bought their shares subsequent to the unauthorized window renovations.
Carro and Rubin, JJ., concur with Kassal, J.; Sullivan, J. P., and Smith, J., dissent in a separate opinion by Smith, J.
Order and judgment (one paper) Supreme Court, New York County, entered on or about February 15, 1991, is reversed, on the law and facts, and in the exercise of discretion, and the petition granted, without costs.