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Re: Family daycare..A GOOD CASE POSTED

Posted by Richard on January 29, 1999 at 21:13:09:

In Reply to: Re: Family daycare posted by Jenny Louder on January 29, 1999 at 05:21:55:

: : My landlord took me to court on Jan. 21. He claims that I am violating the use and occupancy clause of my lease because I am a family daycare provider. In court we met with a mediator who told my landlords lawyer that unless I was making a lot of noise or destroying his property that he could not evict me. The court ( in queens) had just ruled in a similar case and found in favor of the tenant. The lawyer still insists on going to trial. Our new court date is Febrary 10. I can not get a lawyer. I make to much money for free legal aid but not enough to hire any one. I will probably win, but I am very nervous about representing myself. I would also like to get back my lost wages if I could. Can anyone give me some advice? I would really appreciate it.

4/24/96 N.Y.L.J. 27, (col. 3)

New York Law Journal
Volume 215, Number 79
Copyright 1996 by the New York Law Publishing Company

Wednesday, April 24, 1996

Court Decisions
First Judicial Department
New York County
Civil Court: Housing Part 18J


Judge Malatzky

This summary hold-over proceeding was commenced against the rent stabilized tenant in or about November 1995. The petitioner alleges that respondents are violating a substantial obligation of their tenancy by operating a business consisting of caring for children, other than family, in their apartment. Such use is also alleged to be a violation of the certificate of occupancy for the subject building. This case was tried on January 23 and February 14, 1996. At the close of trial, the court requested memoranda of law.
Respondent Mercy Cruz resides in a three bedroom apartment with her husband and two adult children. Ms. Cruz is registered [FN1] as a family day care provider pursuant to a certificate issued by the New York City Department of Health, Office of Family Day Care (Pet. Exh. 7). It is undisputed that Ms. Cruz provides family day care services in her apartment and receives remuneration for this.
In Matter of Park East Land Corp. v. Finkelstein, 299 NY 70, 74 (1949) [FN2], the court analyzed the concept of a "substantial" obligation of a tenancy. The court stated that the term 'substantial'
"is a word of general reference which takes on color and precision from its total context. Having little if any meaning when considered in abstract or in vacuum, it must be defined with reference to the peculiar legal and factual setting in which it occurs."
The court also noted that the mechanical application of common- law landlord- tenant rules would not result in reasonable decisions in cases controlled by emergency rent laws. Id. at 75.
In 1984, the court did not alter the position which was adopted in Finkelstein:
"[i]nasmuch as the housing crisis in New York City has not abated over the past 35 years (citations omitted), we see no reason to give a more restrictive construction to the current Rent Stabilization Code than was given to the New York City Eviction Law in 1949 [in Finkelstein]. Furthermore, we do not believe that the city council, in authorizing the adoption of the present Rent Stabilization Code, intended that de minimis violations of substantial lease obligations should serve as a basis for the eviction of tenants from their rent-stabilized homes. (citations omitted)."
Park West Village v. Lewis, 62 N.Y.2d 431, 437 (1984) [FN3]. The court reiterated the Finkelstein standard which required a showing by the landlord that the tenant's breach represented a "significant departure" from a substantial obligation of the tenancy. Id.
In both Finkelstein and Lewis, the court applied public policy considerations (the housing emergency) to define the scope of conduct which can be considered in determining whether the tenant has breached a substantial obligation of the tenancy. In the instant case, the conduct of the tenant which constitutes the alleged breach, implicates strong public policy considerations which also must be addressed.
This court could locate no appellate authority which deals directly with the issue of child care activities as a breach of a lease. However, as far back as 1960, the trial courts have been analyzing the issue of in-home day care services similar in nature to the services provided in the instant proceeding. These cases have held that such activities are consistent with public policy and do not alter the residential character of a building or neighborhood. Diament v. Isaacs, 24 Misc 2d 1026 (Municipal Ct. of City of N.Y., Borough of Brooklyn, 1960), Vittorio Properties, Inc. v. Alprin, 67 Misc 2d 439 (Civil Ct. of the City of N.Y., Bronx County, 1971), Young v. Alexander, N.Y.L.J., September 7 1994, at 27, col. 5 (City Ct. of New Rochelle). The policy concerns articulated in 1960 have not abated and have perhaps grown even more compelling today:
"[t]he proper care of working mother's children is a basic social and economic problem of our time and society. The construction here sought by the landlord [FN4] would have a crippling effect on an indispensable social technique."
Diament v. Isaacs, supra, at 1027-28.
In Young v. Alexander, supra, and Vittoria Properties, Inc. v. Alprin, supra, the tenants were operating family day care services identical to those provided by the tenant herein (a maximum of six children) pursuant to certification by New York State or New York City government agencies. Both Young and Virrorio Properties hold that the care of six children in an apartment is consistent with residential use and serves to advance the public policy of this state. This court agrees. The landlord has not shown that the family day care services herein disturb other tenants, damage the property, or overburdens utilities at the expense of the landlord. Where a tenant is otherwise in compliance with laws, codes, rules, and regulations, the conduct of family day care, as defined in s390 of the Social Services Law (SSL) and 18 NYCRR Part 417, does not alter the residential character of a building and does not constitute a violation of a substantial obligation of the tenancy.
Petitioner expresses legitimate concerns over the issue of fire safety. At trial, one of petitioner's witnesses was a licensed architect who testified that a day care center should not be operated on the second floor of a non- fireproof building. [FN5] No usable legal citation was offered by the witness nor did petitioner cite authority for this statement in its post-trial memorandum. SSL s390(1) provides definitions for the various categories of "child day care" which include "day care centers" [FN6] [SSL s390(1)(c)], "group family day care homes" [SSL s390(1)(d)], "family day care homes" [SSL s 390(1)(e)], "school age child care" [SSL s390(1)(f)]. These categories are further defined and regulated in 18 NYCRR Parts 416, 417, 418 which also include additional regulations regarding licensing, registration [FN7], and fire protection. When a non-fireproof multiple dwelling is used to provide group family day care services, these activities must be conducted on the ground floor of such buildings [FN8]. This is also the case for non-fireproof buildings used as day care centers [FN9] However, the fire protection standards for "family day care" appear to be less stringent than similar requirements for "group family day care" and "day care centers." The regulations make no mention of a requirement that "family day care" be provided only on the first floor of a non-fireproof dwelling:
"(f) Children may be cared for only on such floors as are provided with readily accessible alternate means of egress which are remote from each other ...
(2) When care is provided primarily on the second floor of a family day care home, both means of egress from the second floor must be stairways. One stairway must be an interior stairway with no intervening rooms or obstructions which lead to an exterior door at ground level, and the other stairway must be exterior to the house and lead directly to the ground."
18 NYCRR s417.8(f)(2). It appears from the evidence submitted that respondent is in compliance with these fire protection standards and that proof of such compliance is a requirement for registration as a family day care provider. (Pet. Exh. 7). Petitioner has not shown that respondent has violated any fire regulations or has caused any violations to be placed against the subject building. Furthermore, with regard to insurance, it appears that liability coverage is necessary for the licensing of "day care center" operators [18 NYCRR s418.2(27)] but is not a requirement to obtain certification as a "family day care" provider [18 NYCRR s417.2].
Petitioner's assertion that respondent's use of her apartment for family day care is a violation of the certificate of occupancy is also unavailing. Indeed, the opposite appears to be true:
"Although 18 NYCRR 417.3(h) requires that an applicant for a certificate to provide in-home day care demonstrates that the residence complies with local health and safety regulations, it does not authorize a locality to treat State- regulated family day care homes as a separate class of residences upon which it may impose distinct and onerous conditions. Rather, consistent with the State's policy to promote the greater availability of day care homes, 18 NYCRR 417.3(h) merely establishes an adequate means of ensuring that ancillary concerns such as safety, fire, and health standards are met, unobtrusive to State goals, by allowing an applicant to satisfy the criteria otherwise applicable to all residences generally, or by proving that a valid certificate of occupancy had been issued on the premises as a residence." (citation omitted) (emphasis added)
People v. Clarkstown [FN10], 160 AD2d 17 (2nd Dep't, 1990). This case seems to be suggesting that the existence of a valid residential certificate of occupancy for a building is a necessary prerequisite for the use of a residence located therein to provide in-home family day care. The court also recognizes that the care of small groups of children is unlike other businesses conducted from the home. These activities are probably most effective when operated from the home, and are not only consistent with residential use but are, by definition, uniquely characteristic of residential life in our society.
Accordingly, the court finds in favor of the respondent and the petition is dismissed. This constitutes the decision and order of this court.

FN1. Respondent Cruz' registration certificate as a family day care provider (Pet. Exh. 7) indicates that she is certified to provide care for up to five children between the ages of six weeks and 12 years (with no more than two children under two years of age); or six children between the ages of two and 12 years. The certificate expires November 17, 1996.

FN2. In Finkelstein, supra, the landlord leased a two-room apartment in the Bronx to a husband, wife, and son under a lease which prohibited subletting and restricted use of the apartment to the tenant and "immediate family." Violation of these covenants would allow the landlord to terminate the tenancy. In 1946, the lease expired and, pursuant to a notice from the landlord, the tenant remained as a "statutory monthly tenant" under the local emergency rent law. Thereafter, the husband died and his widow remarried and left the apartment to live with her new husband. The son remained and the daughter and son-in-law of the new husband also moved into the subject apartment on a temporary basis. The housing rent commission denied a certificate of eviction and the Court of Appeals affirmed, noting that the violation was purely technical and did not represent a significant departure from the obligation of the tenancy.

FN3. In Park West Village v. Lewis, the tenant was conducting her entire professional psychotherapy practice (15-22 patients per week) in her apartment and had constructed a floor-to-ceiling partition in her living room to provide a separate work space. The court held that these activities were at odds with the residential character of the building and could not be characterized as a de minimis or technical violation of the lease's residential use covenant.

FN4. In Diament v. Isaacs, the landlord claimed a substantial breach of an obligation of the tenancy because the tenant cared for three children in her apartment during the day. The children were between two and four years of age and the tenant received some financial compensation for these services. These activities were found to be consistent with the residential lease.

FN5. Petitioner's Exhibit 5 is a Certificate of Occupancy which indicates that the subject building is non-fireproof.

FN6. SSL s390(13) states, however, that "[n]otwithstanding any other provision of law, this section shall not apply to child day care centers in the city of New York." In New York City, day care centers are licensed by the New York City Department of Health. See, Governor's Program Bill #118A 972B Memorandum, 1989 p 3.

FN7. Licensing requirements appear to be more stringent than registration requirements with "day care centers" requiring licensing and "family day care" requiring registration. "Family day care" provide services for the smallest maximum number of children (six) of the various categories defined by the statutes.

FN8. With regard to fire protection in "group family day care" services s 390(12)(b) states, "[n]otwithstanding any other provision of law, no local government may ... prohibit use for group family day care of a multiple dwelling classified as fireproof or prohibit use for group family day care, of a dwelling located on the ground floor of a multiple dwelling not classified as fireproof, where in either case a permit for such use has been issued in accordance with regulations adopted pursuant to this section and such use is otherwise permitted under state fire and safety standards (the state code) and under any other existing standard for permitted uses of the multiple dwelling."

FN9. With regard to fire protection in "day care centers" 18 NYCRR s418.8 states, [c]hildren may be cared for only on such floors as are provided with readily accessible alternate means of egress to other floors, in the case of fire resistant buildings, and to the outside in the case of nonfire-resistant buildings, and such means of egress must be remote from each other. No vertical ladders, chain ladders or slide chutes may be used as a means of egress.

FN10. In People v. Clarkstoen, the court reviewed a local ordinance which purported to impose "performance standards" onto family daycare homes. The town of Clarkstown had enacted additional regulations which were more restrictive than those enacted by the state in 18 NYCRR Part 417. The court held the legislature, by enacting SSL s390 and the administrative rules which flow therefrom, had preempted the regulation of family day- care homes thereby rendering the local ordinance invalid.
4/24/96 NYLJ 27, (col. 3)

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