Mintz v. Elton, 2021-21336

CourtNew York Justice Court
Writing for the CourtMICHAEL J. MCDERMOTT, J.
PartiesDouglas Mintz and LLOYD CHEU, Petitioners-Licensors, v. Louise Elton, Respondent-Licensee
Decision Date14 December 2021
Docket NumberIndex LT 20110047,2021-21336

Douglas Mintz and LLOYD CHEU, Petitioners-Licensors,
v.

Louise Elton, Respondent-Licensee

No. 2021-21336

Index No. LT 20110047

Justice Court of the Town of Somers, Westchester County

December 14, 2021


Petitioners are represented by Eric Weiss, Esq., Weiss & Weiss

Respondent is represented by Mary Grace Ferone, Esq., Legal Services of the Hudson Valley

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 [1] pursuant to Chrysafis v. Marks, __U.S.__, 141 S.Ct. 2482, __L.Ed.2d __ (2021) to determine the rebuttable presumption of the medical hardship [2] 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 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 [3] 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...

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