Licensed family daycare center operated in dwelling with residential C of O. Diversity Learning Center, located on the first floor of a three-story building at 193 Sumpter Street in Brooklyn, has operated for 10 years providing day care and educational services. On December 9, 2014, a Buildings officer determined that the operation of Diversity Learning Center conflicted, the certificate of occupancy for the premises. The officer issued a summons charging the owner, Moses Otote, with violating the New York City Administration Code Section 28-119.3.2, which prohibits any change in occupancy or use inconsistent with that allowed by the issued certification of occupancy.

At the hearing, Buildings submitted the certification of occupancy, which authorized a dwelling unit on each of the first through third floors, not a day care center. Otote, in defense, submitted a group family day care license as well as a letter of no objection from Buildings to use the first floor apartment as a day care for no more than twelve children. The hearing officer rejected Otote’s defense, finding that his use of the premises as a day care center was contrary to the use authorized by the certification of occupancy.

On appeal, Otote argued that he operated a group family daycare center that had a valid certification of occupancy, not a day care center as alleged by the issuing officer. The Appeals Board credited Otote’s license and letter of no objection citing State law that precluded Building’s from prohibiting or restricting a use of a multiple dwelling for a group family day care where a license for such use has been issued. Accordingly, the Board held that the hearing officer’s decision was not supported by law and granted the appeal.

NYC v. Otote, OATH Appeal No. 1700589 (July 20, 2017). CityADMIN

By: Danielle Hendler (Danielle is a student at New York Law School, Class of 2019)