Running a daycare in New York means balancing the joy of caring for children with the constant pressure of compliance. The Office of Children and Family Services (OCFS) and the Department of Health (DOH) impose exacting standards on every program—from home-based care to group centers. One inspection, one anonymous complaint, or one paperwork error can trigger violations, fines, or even license revocation.
This comprehensive guide, based on real New York case law and statutory authority, explains how a New York daycare defense attorney helps you navigate OCFS or DOH actions, assert due-process rights, and safeguard your livelihood.
1. Understanding New York’s Daycare Regulatory Framework
Daycare oversight in New York is a shared responsibility:
- OCFS regulates family and group-family programs under Social Services Law § 390.
- DOH—including the NYC Department of Health and Mental Hygiene (DOHMH)—licenses and inspects center-based and preschool programs under Health Code Article 47.
The two systems are complementary, not conflicting (McLean v. City of New York, 12 N.Y.3d 194 [2009]; Garcia v. DOHMH, 31 N.Y.3d 601 [2018]) .
Providers can review both regulatory schemes here:
- OCFS Child Care Regulations – Full state licensing and ratio rules.
- NYC Health Code Article 47 (Child Care Centers) – DOHMH’s comprehensive health and safety code.
For a complete description of Gilmer Law Firm’s advocacy for daycare operators, see:
2. Why Violations Occur
Even conscientious providers can receive violations for:
- Blocking inspector access to premises or children (a breach of 18 NYCRR 417.15[b][10]) — Riel v. OCFS, 175 A.D.3d 1166 [1st Dep’t 2019] confirmed revocation for refusal to admit an inspector .
- Exceeding licensed capacity or using unapproved caregivers (Frye v. Kaladjian, 209 A.D.2d 787 [3d Dep’t 1994]) .
- Failing to maintain health, supervision, or ratio records (Adams v. Carrion, 85 A.D.3d 1517 [3d Dep’t 2011]) .
- Building, fire, or sanitation code breaches (see People v. Nicosia, 171 Misc.2d 915 [Nassau Cnty 1997]).
- Ignoring prior corrective directives or operating during suspension.
Minor omissions—like an unsigned attendance sheet—can snowball if OCFS or DOH deems them “systemic.”
3. Due-Process Rights for Daycare Operators
New York daycare licensees hold a protected property interest in their license; both the Fourteenth Amendment and state law guarantee fair process before deprivation.
Notice and Opportunity to Be Heard
Under 18 NYCRR § 413.5(a), OCFS must provide written notice describing each alleged violation, the legal basis, and the proposed penalty. You then have the right to request a hearing.
In Tender Loving Care Day Care, Inc. v. OCFS, 47 A.D.3d 940 [2d Dep’t 2008], the court held that OCFS satisfied due process where it gave clear notice and a chance to contest .
Right to a Fair Hearing
Hearings allow you to present witnesses, cross-examine inspectors, and submit documents. Findings must be based only on the record.
Procedural fairness was reaffirmed in Seemangal v. OCFS, 49 A.D.3d 460 [1st Dep’t 2008], where the court found no due-process violation even though a different official signed the decision, so long as procedural rules were met .
Emergency Suspensions and Imminent Danger
The state may suspend operations without a prior hearing only if children face imminent danger—blocked exits, unsupervised children, or other life-threatening conditions.
Still, the agency must issue written findings and hold a prompt post-suspension hearing.
Rembert v. Perales, 187 A.D.2d 784 [3d Dep’t 1992] upheld such a suspension where continued operation endangered children .
Continuation Pending Hearing
If you request a hearing before the date of proposed discontinuation, your daycare generally remains open until the ALJ issues a decision—see Accurso v. Berger, 87 Misc.2d 520 [Nassau Cnty 1976] .
4. Corrective Action Plans (CAPs): Your First Defense
Before OCFS or DOH seeks suspension, they often require a Corrective Action Plan (CAP).
Under 9 NYCRR 166-1.4(d), you typically have 10 days to respond. CAPs show good faith and can avert harsher penalties.
Crafting an Effective CAP
- Be Specific and Documented – Respond to each violation with proof: staff training certificates, policy revisions, repairs, or photos.
- Avoid Argument – Accept responsibility where appropriate; reserve legal defenses for hearings.
- Show Timelines and Verification – List completion dates and attach compliance evidence.
In Adams v. Carrion, OCFS accepted a provider’s CAP as partial remediation even while disputes continued, demonstrating the value of swift compliance .
5. Administrative Hearings and Proportional Penalties
When violations remain unresolved, OCFS or DOH may move to revoke or suspend your license.
At the hearing, an ALJ reviews evidence, applies substantial-evidence standards, and recommends a decision to the Commissioner.
Courts reviewing those decisions under CPLR Article 78 focus on whether findings are supported by “some credible evidence.”
The Pell standard governs penalty proportionality: a sanction may be annulled if it is “shocking to one’s sense of fairness” (Matter of Pell v. Board of Educ., 34 N.Y.2d 222 [1974]) .
In Lewis v. OCFS, 114 A.D.3d 1065 [3d Dep’t 2014], revocation was deemed too severe for unsupervised children when no imminent danger existed. Conversely, Sindone-Thompson v. OCFS, 296 A.D.2d 776 [3d Dep’t 2002] upheld revocation for leaving a child in a car, showing how seriousness dictates outcome .
6. Judicial Review and Article 78 Proceedings
After administrative remedies end, daycare owners can file an Article 78 petition in Supreme Court.
Courts examine whether the agency:
- Violated lawful procedure,
- Acted arbitrarily or capriciously,
- Committed legal error, or
- Lacked substantial evidence.
In Tender Loving Care Day Care, judicial review confirmed that ALJ findings supported revocation.
But in Adams v. Carrion, the Third Department explained that the four-month filing deadline begins once OCFS notifies you that all administrative remedies are exhausted .
7. Proportionate Justice and “Shock the Conscience” Review
Administrative penalties must reflect the gravity of misconduct.
New York courts consistently apply the Pell fairness test to daycare enforcement:
- Riel v. OCFS, 175 A.D.3d 1166 (2019): penalty review must ensure fairness .
- Seemangal v. OCFS, 49 A.D.3d 460 (2008): revocation appropriate only when violation endangers children.
- Lewis v. OCFS (2014): revocation overturned as excessive for first offense.
This proportionality principle is a cornerstone of New York daycare defense practice.
8. The Role of Evidence and Agency Compliance
Agencies must follow their own procedures.
In Frye v. Kaladjian (1994), revocation for exceeding capacity and obstructing exits was upheld because evidence was “substantial and credible.”
But when agencies deviate from notice or timing rules, courts can vacate their determinations.
Procedural missteps—retroactive enforcement without imminent-danger findings or delayed hearings—are fertile grounds for Article 78 challenges.
9. Confidentiality, Complainants, and Fairness
Providers are entitled to a fair opportunity to know and rebut allegations.
In De Carlo v. Commissioner of Social Services (131 A.D.2d 31 [3d Dep’t 1987]), the court ruled that confidentiality of a complainant’s identity was not a due-process violation as long as the operator could access the substance of the evidence .
This case remains pivotal: it balances child privacy with a provider’s right to defend against accusations.
10. Local Authority and Building Code Compliance
Providers often forget that local building and fire departments enforce separate rules.
Under Social Services Law § 390(12)(a), local officials may inspect for sanitation, fire safety, and structural integrity.
Failure to comply can trigger DOH penalties, as shown in Royal Daycare Center LLC v. PB 2180 Pitkin Ave, LLC, 180 A.D.3d 1097 [2d Dep’t 2020], where the operator lost its permits due to structural issues and defective certificates of occupancy .
To maintain compliance:
- Keep all certificates of occupancy current.
- Coordinate promptly with landlords for repairs.
- Document all communications with municipal inspectors.
11. Practical Steps When You Receive a Violation
- Read the Notice Carefully – note the citing agency (OCFS or DOH) and deadlines.
- Notify Your Attorney immediately; response deadlines are often only 10 days.
- Submit a CAP showing concrete corrective measures.
- Preserve Evidence – take photos, retain logs, gather staff statements.
- Request a Hearing on time to preserve rights to operate pending decision.
- Track Dates – Article 78 petitions must be filed within four months of final determination.
Delays or silence often lead agencies to assume non-compliance.
12. Preventing Future Violations
Long-term success depends on proactive compliance:
- Conduct mock inspections twice a year using OCFS and DOH checklists.
- Maintain a compliance binder (attendance, medical forms, training records, emergency plans).
- Ensure all caregivers have SCR and SEL clearances and current certifications.
- Schedule annual policy reviews with counsel familiar with child-care law.
- Encourage staff to document and report issues internally before they become violations.
These practices not only prevent enforcement but also demonstrate good faith if a complaint arises.
13. Working with a New York Daycare Defense Attorney
A daycare defense lawyer’s expertise covers:
- Regulatory strategy: analyzing inspection reports, drafting CAPs, communicating with OCFS/DOH.
- Administrative litigation: representing you at hearings under 18 NYCRR 413.5.
- Judicial appeals: filing Article 78 petitions in Supreme Court.
- Negotiation: reaching settlements that preserve licenses under probationary conditions.
- Compliance training: implementing policies that satisfy regulators.
Daycare defense is a specialized field combining administrative, regulatory, and constitutional law—an attorney experienced in all three is essential.
14. Key Takeaways
- Act immediately when you receive a violation.
- File a Corrective Action Plan within the deadline.
- Request a hearing to preserve your license pending decision.
- Gather evidence and maintain records of compliance.
- Seek legal representation experienced in OCFS and DOH practice.
- Appeal unjust decisions through Article 78 review.
15. Conclusion
Your daycare is more than a business—it’s a community lifeline.
New York’s childcare laws demand strict compliance, but they also guarantee fairness.
Understanding your rights, responding quickly, and partnering with an experienced New York daycare defense attorney can make the difference between a temporary citation and a permanent closure.
At The Gilmer Law Firm, PLLC, we defend daycare operators statewide—from first inspections to Article 78 appeals. Whether you face OCFS citations, DOH summonses, or license-revocation hearings, we’re here to protect your license, your reputation, and your future.
