Beuhler 1992 Family Trust v Longo

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[*1] Beuhler 1992 Family Trust v Longo 2019 NY Slip Op 29049 Decided on February 15, 2019 Civil Court Of The City Of New York, Kings County Ortiz, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on February 15, 2019
Civil Court of the City of New York, Kings County

The Beuhler 1992 Family Trust, Petitioner, Landlord,

against

Donna Marie Longo, Respondent, Tenant JOHN DOE and JANE DOE, Respondents, Underoccupants.



L & T 99395/17



Wenig Saltiel LLP

Meryl Wenig, Esq.

26 Court Street, Suite 1200

Brooklyn, NY 11242

(718) 797 - 5700

mwenig@ltattorneys.com

Charles Wasserman, Esq., Of Counsel to Ms.

Longo's, Article 81 Guardian,

New York Foundation for Senior Citizens

733 Yonkers Avenue

Yonkers, NY 10704

(914 ) 375 - 0100

Cwasserman@novickedelstein.com

Jaime Lathrop, Esq.

641 President Street, Suite 202

Brooklyn, NY 11215

(718) 857 - 3663

jlathrop@lathroplawpc.com

Morris Mitani. Esq. Attorney for Article 81

Article 81 for respondent

New York Foundation for Senior Citizens

140 East 45th Street, 44th floor

New York, NY 10017
Frances A. Ortiz, J.

This is a holdover proceeding brought against, Donna Marie Longo ("Ms. Longo"). She is the rent controlled tenant of record for the subject premises. The notice to quit terminates Ms. Longo's tenancy pursuant to 9 NYCRR § 2204.2 (a) (2) and New York City Administrative Code §26-408 based on nuisance behavior. According to the notice, Ms. Longo's behavior has inflicted serious and substantial injury on the landlord in that the subject premises are being damaged and are a fire hazard which affects the health and safety of other tenants in the building. Other tenants have threatened to vacate their apartments, since they fear for their safety.Specifically, there are twelve facts claimed in the notice to quit to support these allegations. The claims indicate precise dates including month, year and description of behavior. The behavior includes storing large boxes in the public hallway of the fourth floor outside her apartment, despite being asked to remove it. There are noxious odors emanating from her apartment on almost a daily basis. An air purifier was installed outside her apartment to alleviate some of the smell but the odor still emanates. Since at least May 2017, Ms. Longo has allowed her dog to incessantly bark on almost a daily basis for hours, during both morning and night. Ms. Longo on June 28, 2017 confronted the tenant in apartment 1. She began yelling for an extended period of time using very abusive language. She threatened the tenant and her family.

Between June 30, 2017 and July 8, 2017, Ms. Longo left numerous harassing handwritten and signed notes for each tenant in the building. On July 4, 2017 she uninvitedly entered a party one of the tenants was having in the garden. She engaged in abusive language and threatened the tenant, Pablo Arroyo and his family. Mr. Arroyo felt so threatened, he called the police.

On September 29, 2017 there was loud banging and screaming outside the door of apartment 1. The tenant and her two small children came to the door, and Ms. Longo was screaming to be let in. The screaming of obscenities and banging continued. The tenant feared for her and her children's safety. She had to call the police.

In October 2017 while tenants in the ground floor apartment were having a birthday party for a three year old in the garden, Ms. Longo once again uninvitedly entered this party. She began screaming vulgarities in front of the guests including their children. Moreover, throughout March 2017 to October 2017, Ms. Longo on a weekly basis confronted tenants of apartment 1 and the ground floor unit. The confrontations involved foul language, derogatory phrases and threats.

During the months of June 2017 to September 2017, Ms. Longo on at least a weekly basis screamed from the window of her fourth floor apartment down to the tenants enjoying the garden for no apparent reason. Throughout the months of March 2017 to October 2017, at least on a weekly basis, Ms. Longo screamed down the stairs, from the hallway outside of her apartment. The screaming lasted for extended periods of time and for no apparent reason. Since June 2017, Ms. Longo has sent endless emails to the petitioner, sometimes the emails total one hundred (100) daily. The emails are threatening, foul and belligerent.

The matter was referred to Part C for trial on March 20, 2018. Subsequently, it was [*2]adjourned numerous times for an Adult Protective Services referral and for appointment of an Article 81 Guardian for Ms. Longo. All parties including the Article 81 Guardian were represented by counsel. The trial began on December 13, 2018 and concluded on its next court appearance of January 9, 2019.

Based upon the credible documentary and testimonial evidence, the Court makes the following findings of fact and conclusions of law.

EVIDENCE

Before the trial began, the parties stipulated as to the facts on the record. The parties agreed that petitioner, The Beuhler 1992 Family Trust, is the owner and landlord of the premises known as 91 3rd Place, Brooklyn, NY, that the subject building is a multiple dwelling properly registered with the Department of Housing Preservation and Development, that Ms. Longo is the rent control tenant of apartment No.3 at the subject building, that Ms. Longo was properly served with the pleadings and Notice to Quit, and that the sole issue for trial is whether the conduct complained of in the Notice to Quit rises to the level of a nuisance.

Additionally, the respondent did not object to petitioner's Notice to Admit dated March 1, 2018. Accordingly, moved into evidence were Petitioner's Exhibit A (true copies of emails sent by Ms. Longo in June 2017); Petitioner's Exhibit B (true copies of emails sent by Ms. Longo in July 2017); Petitioner's Exhibit C (true copies of emails sent by Ms. Longo in August 2017); Petitioner's Exhibit D (true copies of emails sent by Ms. Longo in September 2017); Petitioner's Exhibit E (true copies of emails sent by Ms. Longo in October 2017); Petitioner's Exhibit F (true copies of emails sent by Ms. Longo in November 2017); Petitioner's Exhibit G (true copies of emails sent by Ms. Longo in December 2017); Petitioner's Exhibit H (true copies of emails sent by Ms. Longo in January 2018); and Petitioner's Exhibit I (true copies of emails sent by Ms. Longo in February 2018). All of these emails combined total over one thousand (1,000) emails. These emails were mainly sent by Ms. Longo to petitioner, Launa Beuhler. Some emails were sent within minutes of each other and numerous times a day and during non-business hours (i.e 1 a.m. or 2 a.m.). The emails ranged from repair requests, to threats to spray individuals with pepper spray, to offensive racist remarks about tenants in the building.

Before the testimony began, the parties stipulated to admit in evidence without any objections Petitioner's Exhibits J, K, L, M, N and O. Accordingly, these Exhibits were moved into evidence.

Petitioner's Exhibit J is a New York City Police Department ("NYPD") complaint 1793, dated July 8, 2017. The complaint was from petitioner, Launa Beuhler. Ms. Beuhler called the police because Ms. Longo yelled at her, repeatedly sent her emails and harassed other tenants by yelling and repeatedly leaving them notes.

Petitioner's Exhibit K also is a NYPD complaint 2612, dated September 30, 2017. The complaint was filed by an occupant of apartment 1 at the subject building. The complaint stated that Ms. Longo with intent to incite fear left an envelope and letter entitled "Final Warning."

Petitioner's Exhibit L is another NYPD complaint 3367, dated December 20, 2017. The name and address of the complainant was redacted from the report. The complaint stated that Ms. Longo with intent to annoy and alarm repeatedly screamed at the complainant. As a result, she fled to her apartment but Ms. Longo continued to scream at her door. Ms. Longo rang her [*3]doorbell at odd hours of the night from midnight to 1 a.m. and falsely accused her of stealing packages.

Petitioner's Exhibit M, dated July 15, 2018, is a NYPD accident report. According to the report, Ms. Longo had to be removed from the subject premises by the NYPD, Emergency Squad Unit ("ESU"). The front door of the apartment had to be removed in order to extricate an emotionally disturbed person ("EDP"), namely, Ms. Longo. She was removed and taken to Kings County Hospital on July 15, 2018.

Petitioner's Exhibit N is a letter, dated July 16, 2018, from Kings County, District Attorney's Office addressed to Pablo Arraya-Saenz. Brooklyn District Attorney, Eric Gonzalez, in the letter acknowledges that Mr. Arraya was a victim of a crime cited by Ms. Longo who was consequently arrested.

Petitioner's Exhibit O is a Kings County, Criminal Court, Order of Protection, dated July 17, 2018. It indicates that Ms. Longo must stay away from Pablo Arraya and his family. Ms. Longo in the matter was charged with menacing in the second degree with a weapon.



TESTIMONY

Petitioner called two witnesses. They were Pablo Arraya and Launa Beuhler.



Pablo Arraya credibly testified that he lives at 91 Third Place in the garden apartment, since August 30, 2011. He moved in with his wife and children, ages seven (7) and four (4). He met most of his neighbors. About a year after he moved into the building, he had an encounter with Ms. Longo who lives a few floors above him. She came to his door yelling at him, "Where's my package? I am Donna, I live upstairs." This was late at night about 11 p.m. It was when Ms. Longo lived with her mother. According to Mr. Arraya, he had tiki torches in the backyard and Ms. Longo asked that he take them down. Once again in April 2017 Ms. Longo opened her window to yell at him that he had stolen her packages. At 1 a.m. she was outside his door ringing his doorbell and asking where were her packages. Mr. Arraya explained that his garden ground apartment was where all packages for the building were left after delivery.

In May 2017 he was having dinner with friends outside in the garden, and Ms. Longo became aggressive toward him and his friends. She left two broken eggs outside his door. Then, two weeks later she left safety pins right at the entrance of the building, although he cannot prove it was her. There were about fifty (50) to one hundred (100) safety pins. The petitioner installed a security camera in front of the building. However, Ms. Longo ripped it off at least thirty (30) times or put tape over it.

On July 4, 2017 Mr. Arraya had friends over in the backyard. Ms. Longo yelled at all of them and to about twenty (20) children that were also there. She used extremely foul language in the presence of the children. This was the first time Mr. Arraya called the police on Ms. Longo.

During the summer, Mr. Arraya had a "kiddie pool" in the backyard. Ms. Longo said the pool was illegal and asked for it to be removed. She would continue opening her window and insulting everyone and calling them "illegal Mexicans." She would say that the building was hers. She threw open safety pins at the pool and all over the floor to deflate it. The children could not play in the pool or backyard. It was not safe for them. As a result of all this conduct, a second camera was installed but in the backyard. From this video footage, Mr. Arraya observed that a large can was thrown out of Ms. Longo's window. He did not see who threw it. The video also shows at least twenty (20) items thrown out of her window at different times. These items [*4]include a broomstick, glass bottle of perfume, food, twenty (20) ounce can of tomatoes, empty cans, onions, spices, vases, candles, a spray bottle labeled "witch spray" and safety pins. He had to constantly sit with his iPad looking at the camera. He feared Ms. Longo would throw something while the children were playing. Also, he could not have guests because he was afraid items thrown out the window could hurt them.

Another time, Ms. Longo accused Mr. Arraya of stealing her phone. According to Mr. Arraya, he has called the police six (6) times on Ms. Longo. He has had over thirty-five (35) to forty (40) disturbances with her, since moving to the subject building. Additionally, since March 2017 through the present, Ms. Longo has interfered at least twenty (20) times with his family gatherings.

In October 2017 he had a three year old birthday party. Ms. Longo called the police on Mr. Arraya. The police rang his doorbell. They saw the balloons and realized it was a children's party. As a result, the police left as there was no basis for the call.

Ms. Longo on July 15, 2018 was arrested by NYPD. She had to be pulled out of the apartment. While Ms. Longo was away and detained there were no noise complaints and no yelling. It was very peaceful. Once she returned the disruptive behavior resumed.

According to Mr. Arraya, Ms. Longo smokes so much that the landlord installed an air purifier in the building hallways on the first and third floors. However, Ms. Longo would turn off the purifiers. Mr. Arraya is not comfortable in his apartment. He can not enjoy. He pays a high rent for his apartment, works forty (40) hours a week from home and needs his peace and quiet to live and work. The other tenants include an older couple on the third floor and a couple with young children who feel the same way. Ms. Longo has threatened to kill the neighbors. Mr. Arraya stated to this Court, "Please make this stop."

Mr. Arraya on July 17, 2018 obtained a Kings County, Criminal Court, Order of Protection against Ms. Longo. It indicated that Ms. Longo must stay away from Pablo Arraya and his family. Ms. Longo in the matter was charged with menacing in the second degree with a weapon. (Petitioner's Exhibit O). She violated the Order of Protection but the police did nothing. Actually, two weeks ago she threw a sign out the window.

Launa Buehler also credibly testified. Ms. Beuhler is the co-owner and manager of the subject building. She relies on the income from this building for the care of her elderly father. According to Ms. Beuhler, to date she has received at least eleven thousand (11,000) emails from Ms. Longo. The emails involve admissions of throwing items out her window, use of profanity, hatred toward children, racial slurs, stalking, threatening to sue, and to take her building away. Ms. Buehler's interactions with Ms. Longo have been difficult. They usually involved building maintenance. Ms. Buehler testified that Ms. Longo has large boxes and over sixty (60) bags of household garbage in the hallways of the third and fourth floors of the building. Emergency exits are blocked with these bags. There is an eighty (80) year old tenant on the third floor. These bags block that tenant's egress. Also, Ms. Beuhler testified about the July 15, 2018 three hour police stand off with Ms. Longo. It involved about thirty (30) police officers and the Chief of Police. Lastly, there are families with young children in the building who are terrified of Ms. Longo. She yells at these tenants and comments on their smelly diapers using profanity. In sum, she stated that she is terrified and feels unsafe around Ms. Longo.

Respondent presented no witnesses.



[*5]DISCUSSION

Petitioner commenced this summary holdover proceeding based upon a nuisance claim. New York City Rent Control Law, 9 NYCRR § 2204.2(a)(2) provides for a tenant's eviction where: "The tenant is committing or permitting a nuisance in such housing accommodations; or is maliciously or by reason of gross negligence substantially damaging the housing accommodation; or his conduct is such as to interfere substantially with the comfort and safety of the landlord or of other tenants or occupants of the same or another adjacent building or structure."

Additionally, "..nuisance is a condition that threatens the comfort and safety of others in the building and a key definition is a pattern of continuity or recurrence of objectionable conduct." Frank v Park Summit Realty Corp., 175 AD2d 33, 34 (1st Dep't 1991), mod on other grounds 79 NY2d 789 (1991); Giga Greenpoint Realty, LLC v. Mounier, 61 Misc 3d 135(A) (AT 2nd Dep't 2018). Nuisance must "interfere with a person's interest in the use and enjoyment of land," including "the pleasure and comfort derived from the occupancy of land and the freedom from annoyance." Domen Holding Co. v. Aranovich, 1 NY3d 117, 123—124, (2003); CHI—AM REALTY, INC.,v. Robert GUDDAHL and Terri Guddahl, 7 Misc 3d 54 (AT 2nd Dep't 2005), aff'd, 33 AD3d 911(2nd Dep't 2006).

No strict quantitative test exists establishing how many incidents warrant a finding of nuisance. Rather the court must weigh both the quantitative and qualitative aspects of the particular set of facts in evaluating whether the high threshold of proof required for eviction based on nuisance has been met. 160 West 118th St. Corp. v. Gray, 7 Misc 3d 1016(A) (Civ. Ct. NY Cty 2004).

Here, the evidence and credible witness testimony presented by petitioner at the trial sufficiently shows that Ms. Longo's conduct complained of in the Notice to Quit constitutes a nuisance, under 9 NYCRR § 2204.2(a)(2) and New York City Administrative Code §26-408.



There is ample evidence to sustain that Ms. Longo committed a nuisance by engaging, over a period of time in a course of conduct and pattern of out of control behavior. This behavior was designed to effectively harass, annoy, and threaten her neighbors and petitioner. It made her neighbors and their children fearful. It interfered with their quiet and peaceful enjoyment of their living space and safety. Domen Holding Co. v. Aranovich, supra.

This is evident in the testimony of Pablo Arraya and Launa Beuhler which credibly detailed Ms. Longo's nuisance behavior. The behavior ranged from over eleven thousand (11,000) e-mails sent to Ms. Beuhler which were mainly harassing, disrupting private birthday parties and dinners, shutting off air purifiers, removing or taping security cameras, maintaining large boxes and over sixty (60) garbage bags in the public hallways, throwing objects outside her fourth floor window, repeated use of profanity and racial slurs, multiple police involvements including an arrest of Ms. Longo involving over thirty (30) police officers. These facts satisfy both the quantitative and qualitative high threshold of proof required for eviction based on nuisance. 160 West 118th St. Corp. v. Gray, supra. Additionally, this Court has considered the intolerable burden of this behavior on other tenants and balanced the rights of those individuals in deciding to award petitioner a possessory judgment against Ms. Longo. This Court has considered all those facts and balanced the rights of those involved. It finds that petitioner has proven that Ms. Longo's conduct complained of in the Notice to Quit rises to the level of a [*6]nuisance.

Accordingly after trial, final judgment of possession in favor of petitioner and against respondent, Donna Marie Longo, issuance of the warrant of eviction is forthwith and the execution of the warrant of eviction is stayed to April 30, 2019 for respondent to vacate with dignity and obtain relocation assistance from her Article 81 Guardian. Upon default in vacatur, the warrant may execute, after service of a notice of eviction to respondent, respondent's counsel and Article 81 Guardian.

ORDERED, Final judgment of possession in favor of petitioner and against respondent, Donna Marie Longo, issuance of the warrant of eviction is forthwith and the execution of the warrant of eviction is stayed to April 30, 2019 .

ORDERED a money judgment of $8,872.08 is awarded in favor of petitioner and against Donna Marie Longo as outstanding use and occupancy for the period of March 2018 through February 28, 2019 to be paid by March 15, 2019.

ORDERED respondent, Donna Marie Longo, pay monthly use and occupancy of $739.34 pende lite by the 10th of the month starting March 2019.

Upon default in paying any of the above ordered use and occupancy, the warrant may execute, after service of a notice of eviction to respondent, respondent's counsel and Article 81 Guardian.

The parties are directed to pick up their exhibits within thirty days or they will either be sent to the parties or destroyed at the Court's discretion in compliance with DRP-185.

This is the decision and order of the Court, copies of which are being emailed and mailed to those indicated below.



Dated: February 15, 2019

Brooklyn, NY

_________________________________

Frances A. Ortiz, JHC