Mintz v Elton
Annotate this CaseDecided on December 14, 2021
Justice Court of the Town of Somers, Westchester County
Douglas Mintz and LLOYD CHEU, Petitioners-Licensors,
against
Louise Elton, Respondent-Licensee
Index No. LT 20110047
Petitioners are represented by Eric Weiss, Esq., Weiss & Weiss, 1 Barker Avenue, 3rd Floor, White Plains, NY 10601 914-328-6100 Eweiss@weisslawnewyork.com
Respondent is represented by Mary Grace Ferone, Esq., Legal Services of the Hudson Valley, 90 Maple Avenue, White Plains, NY 10601 914-949-1305 Mferone@lshv.org
Michael J. McDermott, J.
Pursuant to the prior order of this Court dated December 2, 2021 (Court Exhibit 1), on December 10, 2021 the Court conducted a hearing [FN1] pursuant to Chrysafis v. Marks, ——— U.S. ——&mdash, 141 S. Ct. 2482, ——— L.Ed.2d ———— (2021) to determine the rebuttable presumption of the medical hardship [FN2] claimed by Respondent as set forth in Option B to Tenant's Declaration of Hardship During the COVID-19 Pandemic. Courts have held landlords may challenge the rebuttable presumption of medical hardship. Casey v. Whitehouse Estates, Inc., 73 Misc 3d 562, 154 N.Y.S.3d 738, footnote 6 (Supreme Court, New York County 2021); Bitzarkis v. Evans, ___ Misc 3d ____, ___ N.Y.S.3d ___, 2021 WL 4889193, 2021 NY Slip Op. 21280 (Civil Court, Kings County 2021).
At the beginning of the hearing, the parties stipulated that Respondent lives alone, is not over the age 65 and does not allege a disability, which pertain to the criteria set forth in Option B. Accordingly the scope of the hearing was whether vacating the premises and moving into new permanent housing would pose a significant health risk because Respondent has an increased [*2]risk for severe illness or death from COVID-19 due to an underlying medical condition, which may include but is not limited to being immunocompromised.
In response to Petitioners' Document Request No. 2 (Court Exhibit 2), Respondent supplied [FN3] a letter dated April 26, 2021 from Alyssa Freeman, LMSW (Court Ex. 4) and December 7, 2021 from Jennifer Lehman, MD (Court Ex. 5).
Petitioners have the burden of proof by a preponderance of the evidence. Bibow v. Bibow, 72 Misc 3d 1212(A), 150 N.Y.S.3d 232 (District Court, Nassau County July 28, 2021); Kidd v. Williams, 73 Misc 3d 1223(A), ___ N.Y.S.3d ____ (Civil Court, Kings County November 23, 2021). Petitioners called Respondent as the only witness. Respondent testified that in January 2021 she underwent a lumpectomy in her left breast because of a history of breast cancer. Subsequently in April 2021 Respondent underwent reconstructive surgery due the prior lumpectomy. While Respondent has had monitoring from medical providers and has experienced the side effects of radiation treatment, Respondent has not undergone any additional medical procedures.
In connection with the claimed medical hardship, Respondent testified that vacating the stand-alone cottage on Petitioners' property and moving into new permanent housing would pose a significant health risk because Respondent has an increased risk for severe illness or death from COVID-19 due to an underlying medical condition, which may include but is not limited to being immunocompromised.
Respondent testified that the cottage in which she currently resides rent-free does not afford any unique or specific protection that any other stand-alone residence can afford. Inasmuch as Respondent is concerned about exposure to other people, she testified that she has food delivered to her doorstep.
Respondent testified that she has not contacted any realtor who could assist her with locating another residence which is similar to her current premises. In the letter brief from Respondent's attorney dated December 13, 2021, Respondent claims that she is unable to meet with realtors to look at other locations. Inasmuch as Respondent appeared virtually for the hearing, she could well have virtually communicated with realtors in her pursuit for another residence. Indeed, since Respondent withdrew the claim for financial hardship, this Court determines that she has the means to hire people to assist her in moving to another stand-alone residence, which would insulate herself from exposure to people. Bitzarkis v. Evans, supra ("Accordingly, the undisputed factual proposition of Respondent's medical condition alone is insufficient to demonstrate a hardship. A hardship also requires some connection between that medical condition and a danger to moving."); Kidd v. Williams, supra (Hardship does not include health conditions by themselves, but to vacate the premises would pose a significant risk of severe illness or death from COVID-19.)
Simply put, notwithstanding the medical procedure nearly one year ago and the continuing treatment, Respondent has not articulated a medical hardship where she would experience a danger in moving.
Since the Court determines that Respondent's claim for the medical hardship is invalid, a stay of Notice of Petition and Verified Petition pursuant to New York State Real Property Acts Law (RPAPL) §713(7) to remove Respondent is not warranted. Proceedings against Respondent shall proceed.
Counsel shall appear for a virtual conference with the Court on December 20, 2021 at 2:30 pm.
This constitutes the decision and order of the court.
Dated: December 14, 2021
Somers, NY
s/_____________________________
Michael J. McDermott Footnotes
Footnote 1:In the letter brief from Respondent's attorney dated December 13, 2021, Respondent argues that Petitioner failed to set forth the good faith basis for challenging Respondent's hardship declaration. The Court finds that Petitioner's Letter motion dated September 20, 2021 and September 21, 2021 complies with the procedural requirements for the initiation of the hardship hearing.
Footnote 2:At the beginning of the hearing Respondent withdrew her claim for financial hardship, listed as Option A to Tenant's Declaration of Hardship During the COVID-19 Pandemic.
Footnote 3:Over Petitioner's objection, the Court determined that the documents supplied by Respondent complied with Petitioner's discovery demands regarding Respondent's claim of medical hardship.
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