Justice Court of the Town of Somers, Westchester County, December 14, 2021

Weiss & Weiss, White Plains (Eric Weiss of counsel), for petitioners.

Legal Services of the Hudson Valley, White Plains (Mary Grace Ferone of counsel), for respondent.

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 (594 US —, 141 S Ct 2482 [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, 572 n 6 [Sup Ct, NY County 2021]; Bitzarkis v Evans, 73 Misc 3d 827 [Civ Ct, Kings County 2021].)

At the beginning of the hearing, the parties stipulated that respondent lives alone, is not over the age of 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.{**74 Misc 3d at 235}

In response to petitioners' document request No. 2 (court exhibit 2), respondent supplied^[FN3] letters dated April 26, 2021, from Alyssa Freeman, LMSW (court exhibit 4), and December 7, 2021, from Jennifer Lehman, MD (court exhibit 5).

Petitioners have the burden of proof by a preponderance of the evidence. (Bibow v Bibow, 72 Misc 3d 1212[A], 2021 NY Slip Op 50705[U] [Suffolk Dist Ct, July 28, 2021]; Kidd v Williams, 73 Misc 3d 1223[A], 2021 NY Slip Op 51113[U] [Civ Ct, Kings County, Nov. 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 to 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{**74 Misc 3d at 236} moving to another stand-alone residence, which would insulate herself from exposure to people. (Bitzarkis v Evans, 73 Misc 3d at 832 ["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 [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 Real Property Actions and Proceedings Law § 713 (7) to remove respondent is not warranted. Proceedings against respondent shall proceed.