80 St Nicholas Place Assoc. LLC v Walsh
Annotate this CaseDecided on February 25, 2016
Civil Court of the City of New York, New York County
80 St Nicholas Place Associates LLC, Petitioner-Landlord
against
Trevor Walsh and Suzette Walsh 80 St. Nicholas Place - Apt. 2G New York, New York 10032, Respondent-Tenant
L & T 61146/2015
FISHMAN & MALLON, LLP
Attorneys For Respondents
305 Broadway, Suite 900
New York, New York 10007
BARRY S. SCHWARTZ, ESQ
Attorney for Petitioner
119 West 57th Street, Suite 813
New York, NY 10019
Sabrina B. Kraus, J.
BACKGROUND
This summary holdover proceeding was commenced by 80 St NICHOLAS PLACE ASSOCIATES LLC (Petitioner) against TREVOR WALSH and SUZETTE WALSH (Respondents), the rent stabilized tenants of record of 80 St. Nicholas Place - Apt. 2G, NEW YORK, NEW YORK 10032 (Subject Premises), based on the allegation Respondents have breached their lease agreement by running a day care center in the Subject Premises in violation of their lease and applicable laws.
PROCEDURAL HISTORY
In January 2015, DOB issued a Notice of Violation pertaining to the Subject Premises
which provided:
Occupancy contrary to that allowed by the Building Department Records. Noted observed at time of inspection at 2nd floor at apt " 2G" to be occupied as a Group Family day care. Premises is a non-fireproof building and has no approval letter from DOB to use the Apartment 2G as a group family day care center. Also Apt. 2G is located at 2nd floor. Day Care Centers and day nurseries are permitted only at first floor on non-fireproof building and must be non-profit. Remedy: Discontinue Illegal use.
On January 26, 2015, Petitioner paid a civil penalty of $1200 to ECB to settle the fine for said violation.
Petitioner issued a Notice to Cure dated February 4, 2015 alleging that Respondents had breached their lease by operating the day care program in violation of law. Petitioner issued a notice of termination on March 22, 2015, and the proceeding was initially returnable April 24, 2015.
On July 9, 2015, Petitioner moved for summary judgment.
On August 25, 2015, the court issued an order adjourning the proceeding to October 6, 2015 and providing for the interim payment of use and occupancy. On October 5, 2015, Respondent appeared by counsel and the parties entered into a stipulation consenting to the filing of an amended answer and providing for the service of additional motion papers.
Respondent filed an amended answer on October 8, 2015. The answer asserted that Respondent is entitled to operate a Group Family Daycare Home in the Subject Premises and that Petitioner is not entitled to any relief in this proceeding.
On December 9, 2015, Respondents cross-moved for summary judgement.
On February 24, 2016, the court heard argument and reserved decision.
DISCUSSION
In July 2011, Respondents began operating a group family day care in the Subject Premises, after receiving a license from the New York State Office of Children and Family Services for same. Respondents have continued to run this day care since that time. Respondents have a current license valid through April 18, 2017.
Petitioner relies for on Lourdes v Lancaster (52 AD2d 298) for its position that case law
has interpreted the applicable statutes to preclude Respondents' use of the Subject Premises. In Lourdes, a tenant sought to vacate an ECB determination that denied her request to intervene in connection with a notice of violation issued by DOB to the landlord of her non-fireproof multiple dwelling, concerning the use of her second-floor residential premises for group family day care purposes.
The Appellate Division held:
DOB's enforcement of the residential certificate of occupancy against a licensed group family day care facility did not violate and was not preempted by state law. Social Services Law § 390 (12)(b) restrains a local government from prohibiting regulated group family day care facilities in fireproof multiple dwellings, and in ground-floor units of a multiple dwelling that is not classified as fireproof, clearly implying that there is no such immunity for facilities above the ground floor in a multiple dwelling that is not fireproof. Paragraph (a) of subdivision (12) more generally restrains a local government from imposing additional "standards for sanitation, health, fire safety or building construction on a ... multiple dwelling used to provide group family day care ... than would be applicable were such a day care not provided on the premises."
(Id at 296).
The tenant in Lourdes argued that the two paragraph of subdivision 12 were
contradictory, and that paragraph (a) which was enacted after paragraph (b) implicitly overruled paragraph (b). The Appellate Division rejected this argument and held "(w)e must assume that in
juxtaposing these two paragraphs in the same subdivision, the Legislature intended that they be read consistently, with effect given to both (id at 297)."
After Lourdes, effective June 15, 2010, the Legislature amended the law, and eliminated the old paragraph (b). The Bill Jacket describing the amendment provides:
Section 7 of the bill would amend paragraph (a) of SSL §390(12), which limits the ability of local governments to prohibit regulated family day care or group family day care programs from operating in one, two or multiple family dwellings, to also preclude restrictions on such use. Section 8 would repeal paragraph (b) of SSL §390(12), which is otherwise duplicative of paragraph (a) as amended. (New York Bill Jacket, 2010 A.B. 8827, Ch. 117). The Statement in Support further notes that SSL 390(12)(a) was revised to be more clearly worded and that the repealed paragraph had previously enabled ".. (l)ocalities to preclude the Operation of certain family of group family day care programs that have been approved by OCFS (id)."
Respondent argues that the amendment renders Petitioner's claim herein invalid.
Petitioner responds that §390(13) of the amended provision which provides "Notwithstanding any other provision of law, this section ... shall not apply to child day care centers in the city of New York."
However, both the statute which defines "child day care center" and "group family day care home" and the license issued to Respondents by OCFS make clear that the Subject Premises is used as a group family day care home not a child day care center [§390(1)(D)].
Both parties agree that there are no disputed material issues of fact precluding an award of summary judgment. The court finds that Respondents' operation of the licensed Group Family Day Care is not in violation of the law and based on the foregoing, Petitioner's motion is denied, Respondents' cross-motion for summary judgment is granted and the proceeding is dismissed.
This constitutes the decision and order of the Court.
Dated: February 25, 2016
New York, New York
__________________
Sabrina B. Kraus, JHC
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