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Residential Use Restriction In Cooperative’s Proprietary Lease Held Unenforceable To Bar Operation Of A Day Care Center

A landlord-tenant judge has held that a provision in a cooperative’s proprietary lease requiring that the apartment must be used only for residential purposes cannot be invoked to bar a tenant-shareholder from operating a licensed day-care center at the premises. Walden Gardens, Inc. v. Burns, NYLJ 1202658580989 (Civ. Ct. Bronx Co. June 5, 2014),


In this case, the Cooperative sought to evict a tenant-shareholder because she was undisputedly operating a day-care center from her apartment, thus allegedly breaching the proprietary lease’s restriction that the premises were to be used solely for residential use. The tenant-shareholder moved to dismiss the proceeding, arguing that she was “a group family day care provider licensed by the New York State Office of Children and Family Services to provide care for children in the premises.”  The tenant-shareholder asserted that this use of the premises was statutorily permitted under Section 390 of the Social Services Law, which authorizes the issuance of a license to operate a group family day care business in a residential setting, and that the public policy embodied in this statute trumped any contrary provision of the proprietary lease.


The court agreed with the tenant-shareholder, observing that New York “[c]ourts have generally enforced restrictions on the use of residential premises for residential use only…. However, as it relates to Social Services Law Section 390(1)(d), courts have carved an exception to such restrictions based upon public policy considerations and held that the use of a licensed group family day care in residential premises does not violate a substantial condition of the tenancy.”  The court cited several previous decisions in which courts have rejected attempts by condominiums and landlords to exclude day-care centers from their premises, and held that the rationale of these decisions should also extend to cooperatives.  New York’s public policy “to expand the availability and accessibility of such day care facilities, which remain in short supply in the State, and to remove … impediments to their expansion” prevailed over a cooperative’s rules or lease provisions.