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In Re Gwendolyn Rossi, et al v. New York State Office of Children and Family Services

New York Supreme and/or Appellate Courts Appellate Division, First Department


May 24, 2012

IN RE GWENDOLYN ROSSI, ET AL.,
PETITIONERS,
v.
NEW YORK STATE OFFICE OF CHILDREN AND FAMILY SERVICES,
RESPONDENT.

Matter of Matter of Rossi v New York State Off. of Children & Family Servs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 24, 2012

Gonzalez, P.J., Andrias, Saxe, DeGrasse, Roman, JJ.

Determination of respondent, dated April 2, 2010, after an evidentiary hearing, which denied renewal of petitioner Wendy Eugene's license to operate a group family day care in the basement of her residence, and revoked petitioners' license to operate a group family day care on the first floor of the same premises, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Richard F. Braun, J.], entered January 18, 2011), dismissed, without costs.

The agency's determination was supported by substantial evidence (see generally 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180-181 [1978]). The record demonstrates that the ceiling height in the basement was less than seven feet in some areas, an undisputed violation of the applicable building code (see Administrative Code of City of NY § 28-1208.2). The record also supports the finding that the basement and first floor of the residence, which were connected by an internal staircase, constituted one dwelling unit, and that applicable regulations prohibited two group family day care programs from operating in one unit (18 NYCRR 416.15[a][20][i]).

Petitioners had no vested right to continue to operate the programs since they were required to remain in compliance with all applicable regulations (see 18 NYCRR 416.3[l]). Moreover, "estoppel is unavailable against a public agency" (see Granada Bldgs. v City of Kingston, 58 NY2d 705, 708 [1982]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 24, 2012

CLERK

20120524

© 1992-2012 VersusLaw Inc.



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