Court Rules Co-op Boards Cannot Ban Child Day-Care Centers in Apartments

The June 5 ruling by Judge Timmie Erin Elsner bars the co-op board of Waldo Gardens, a Mitchell-Lama high-rise at 3800 Waldo Avenue in the Kingsbridge neighborhood, from evicting shareholder Amesha Burns, who runs a State-licensed child-care center in her 15th-floor apartment.

Elsner cited the 1998 Staten Island case Quinones v. Board of Managers of Regalwalk Condominium, which ruled that "as a matter of public policy, the Board is prohibited from enforcing the condominium declaration to bar the use of the plaintiffs' unit as a group family day care home" and additionally noted that the condo board had "not demonstrated any disruption or additional costs to the operation of the condominium or inconvenience to any of the occupants."

Elsner said in her decision that, "As the Quinones court determined, public-policy considerations preempt restrictive covenants in condominiums. … Based upon the foregoing, the court finds that the same rationale used in Quinones should also be applied to cooperatives."

Undecided on Whether to Appeal

The board's attorney, Andrew Stern of Tane Waterman & Wurtzel, told the New York Law Journal, "We were disappointed with the court's decision on several points. We respectively believe that she and the other decisions on which she relies are in error." He did not say whether the board would file an appeal.

Section 390 of the New York State Social Services Law allows properly licensed and registered "Group Family Day Care Homes" in a residence where child care is provided on a regular basis for seven to 12 children for more than three hours per day,  and "Family Day Care Homes" in a residence where child care is provided on a regular basis for three to six children for more than three hours per day.

Following the Quinones case, which formalized the inclusion of condominiums under the law, the 2005 case Alpha Dynamics Ltd. v. Martinez reaffirmed that Section 390 authorizes licensed day-care facilities a rent-stabilized apartment even over a  landlord's objections. The Waldo Gardens case brings co-ops in line with those decisions.

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