Mintz v. Elton

Decision Date14 December 2021
Docket NumberIndex No. LT 20110047
Citation74 Misc.3d 233,159 N.Y.S.3d 623
Parties Douglas MINTZ and Lloyd Cheu, Petitioners-Licensors, v. Louise ELTON, Respondent-Licensee
CourtNew York County Court

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 hearing1 pursuant to Chrysafis v. Marks, ––– U.S. ––––, 141 S. Ct. 2482, 210 L.Ed.2d 1006 (2021) to determine the rebuttable presumption of the medical hardship2 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 , 73 Misc.3d 827, 157 N.Y.S.3d 330 (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 PetitionersDocument Request No. 2 (Court Exhibit 2), Respondent supplied3 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), 2021 WL 5501421 (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...

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