IN RE: Gwendolyn ROSSI

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Supreme Court, Appellate Division, First Department, New York.

IN RE: Gwendolyn ROSSI, et al., Petitioners, v. NEW YORK STATE OFFICE OF CHILDREN AND FAMILY SERVICES, Respondent.

Decided: May 24, 2012

GONZALEZ, P.J., ANDRIAS, SAXE, DeGRASSE, ROMÁN, JJ. Bernard Mitchell Alter, Brooklyn, for petitioners. Eric T. Schneiderman, Attorney General, New York (David Lawrence III of counsel), for respondent.

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 N.Y.2d 176, 180–181, 408 N.Y.S.2d 54, 379 N.E.2d 1183 [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 N.Y. § 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 N.Y.2d 705, 708, 458 N.Y.S.2d 906, 444 N.E.2d 1325 [1982] ).