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