DOCKET NO.:  DE 810447-RT
               DE 810324-RO
                              STATE OF NEW YORK 
                      DIVISION OF HOUSING AND COMMUNITY RENEWAL 
                            OFFICE OF RENT ADMINISTRATION 
                                     GERTZ PLAZA 
                               92-31 UNION HALL STREET 
                              JAMAICA, NEW YORK  11433 
       
        



      --------------------------------------X       
      IN THE MATTER OF THE ADMINISTRATIVE   :   ADMINISTRATIVE REVIEW
      APPEALS OF                                DOCKET NOS. DE 810447-RT 
          ROCCA & DANIEL MACRI (Landlord)   :               DE 810324-RO
              SHERWIN CERINI (Tenant),          D.R.O. NO.:  TCD-8-1-0049/R
                               PETITIONERS  :   
      --------------------------------------X   
       

        ORDER AND OPINION DENYING BOTH TENANT'S PETITION AND OWNER'S PETITION


      On May 8, 1989, the above named tenant Sherwin Cerini, filed a petition for 
      administrative review of an order issued April 5,. 1989, by the White Plains 
      - Acting District Rent Administrator, concerning housing accommodations 
      known as 320 South Broadway #P-11, Tarrytown, NY, wherein the Acting Rent 
      Administrator determined that the subject premises are subject to the 
      Emergency Tenant's Protection Act and that the owner failed to file the 
      required Apartment Registration forms for the subject apartment.  The 
      Administrator awarded a total penalty for rent overcharge of $9,256.47.

      The tenant in his aforementioned petition (Docket #DE 810447-RT) seeks 
      treble damages for said overcharge which the tenant alleges was wilful.

      On May 5, 1989, the owner filed his petition of the same underlying Acting 
      Rent Administrator's order asserting that the Emergency Tenant Protection 
      Act doesn't have jurisdiction over the subject premises which were converted 
      to condominium ownership and purchased by the respondent on March 20, 1987.  
      The tenant in this action was a sub-tenant in occupancy at the time of the 
      conversion.  The owner in his petition also asserts that even if 
      jurisdiction is found, that the resulting overcharge was neither wilful or 
      malicious therefore barring a finding of treble damages.

      Since the petitions involve common questions of law and fact the 
      Commissioner deems it appropriate to consolidate the proceedings for 
      disposition herein.

      The Commissioner reviewed all of the evidence in the record and has 
      carefully considered that portion of the record relevant to the issues 
      raised by the administrative appeal.

      The original proceeding was initiated by the tenant; by the filing of a 
      complaint of rent overcharge questioning the legal regulated rent.

      The owner was directed to submit proof of apartment registration and a copy 
      of the comparable lease used to establish the subject tenant's vacancy rent.


      The owner in response, stated in response that the premises as a condominium 







          DOCKET NO.:  DE 810447-RT
               DE 810324-RO

      conversion were not subject to the Emergency Tenant Protection Act.  
      Accordingly the owner claimed he was not responsible for filing either an 
      apartment registration or comparable lease.  The owner relied on the advice 
      of legal counsel in making his claim of lack of agency jurisdiction.

      The acting rent administrator determined that the apartment was subject to 
      the Emergency Tenant's Protection Act pursuant to a review of the Division, 
      Certificate and Maintenance files.  A rent overcharge are $9,256.47 was 
      found pursuant to the agency's formula.

      The owner in his PAR argues that the subject premises as a condominium 
      conversion are to be considered a single family residence.  The owner 
      further argued that Tenant Protection Bulletin No. 37 (issued in 1983) only 
      applies to tenants remaining in a converted apartment who have not purchased 
      the unit.  Rather than subtenants who continue in occupancy after the prime 
      tenant purchases the unit in this case.

      The tenant in his PAR and responses to the owner's PAR argues that he 
      Sherwin Cerini, was the subtenant, and later the tenant of the apartment 
      after the condominium conversion.

      The tenant argues that the Acting Rent Administrator erred in failing to 
      order that the respondent-landlord pay treble damages to the tenant for the 
      overcharge pursuant to Section 2506.1(a) of the Tenant Protection 
      Regulations.

      The tenant argues that the preponderance of the evidence establishes that 
      the overcharge by the landlord was due to wilful and intentional acts.

      The tenant in his PAR points out that he took occupancy in June 1986 as a 
      subtenant prior to the offering plan being effective and the owner purchases 
      his apartment.

      Accordingly, the tenant argues that the landlord was initially bound by 
      Section 2505.7(6) of the ETPA, which prohibits a tenant from charging a 
      subtenant a rent greater than the legal regulated rent.

      The tenant in his PAR and response to owner's PAR further points out that 
      the landlord continued to charge an unlawful rent despite notice in both the 
      preliminary offering plan and offering plan that the ETPA applies to rented 
      apartment in a condominium.

      Further the tenant contends that despite request he was never offered a 
      renewal lease in accordance with terms and time requirements of ETPA Section 
      2503.5.

      The owner in answer to the tenant's PAR incorporated his previously filed 
      Petition for Administrative Review and restates his petition that this 
      counsel contends the agency lacks jurisdiction of condominium conversions.

      The tenant is of the opinion that treble damages are warranted against the 
      owner who did not comply with ETPA registration requirements and charged 
      excessive rent despite the fact that the condominium conversion offering 
      plan clearly informed prospective purchasers of the continued applicability 
      of ETPA to converted apartments.

      The Commissioner finds based upon the preponderance of the evidence, that 


          DOCKET NO.:  DE 810447-RT
               DE 810324-RO

      the owner did not wilfully overcharge the tenant, thus not warranting a 
      finding of treble damages.  The owner made a good faith effort to determine 
      the status of the apartment by engaging legal Counsel.  Accordingly he did 
      not wilfully overhcarge the tenant.

      The Commissioner is of the opinion that the owner's petition should be 
      denied.  The owner's claim that the occupied apartments in condominium 
      conversion buildings are not covered by ETPA is without fact and contrary to 
      law.

      THEREFORE, in accordance with the provisions of the ETPA and Tenant 
      Protection Regulations the tenant's petition is ORDERED denied and the 
      owner's petition is denied.  The Rent Administrator's order TCD-8-1-0049/R 
      is hereby affirmed.

      Note:  If the tenant still does not have a valid lease, he may apply at the 
      District Rent Office for appropriate relief.

      ISSUED:


                                                                               
                                                       JOSEPH D'AGOSTA 
                                                 Acting Deputy Commissioner  
       





    

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