Quintana v. Haeussler et al

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JORGE QUINTANA, SR.,
Plaintiff,
3:25-cv-1469
v. 	(AMN/DJS)
ELIZABETH HAEUSSLER and 207 DELAWARE
STREET WALTON, NEW YORK 13856,
Defendants.
APPEARANCES:
JORGE QUINTANA, SR.
Plaintiff, Pro Se
Jacksonville, Florida 32246
DANIEL J. STEWART
United States Magistrate Judge
REPORT-RECOMMENDATION and ORDER
The Clerk has forwarded for review a civil Complaint filed by Plaintiff. Dkt. No.
1, Compl. The filing fee in this action has not been paid, but Plaintiff has filed a Motion
to proceed in forma pauperis. 	Dkt. No. 2. 	That Motion has been granted. 	The matter
has been referred to the undersigned for an initial review pursuant to L.R. 72.3.
I. FACTUAL ALLEGATIONS IN THE COMPLAINT
The Complaint alleges that “Elizabeth Haussler [sic] is the landlord and owner of
the real property known as 207 Delaware Street, Walton[,] New York 13856.” Compl. at
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p. 3. The Complaint further alleges that, in November 2019, Plaintiff Jorge Quintana, Sr.
entered into a lease agreement with Defendant Elizabeth Haeussler whereby he would
lease the second-floor apartment located at the property for $250.00 per month, “paid
fully as one in the month of January of each year.” Id. Plaintiff claims that, in November
2024, Defendants evicted Plaintiff through self-help, including by “remov[ing] the
apartment entrance door,” “changing locks,” “shutting off utilities,” and “removing”
Plaintiff’s “personal property located inside the apartment, outside the apartment[,] and
in the garage.” 	Id. 	Plaintiff asserts that he was on “vacation in the State of Florida” at
the time and returned to find that new people had moved into the apartment. Id. at p. 5.
Plaintiff maintains that Defendants “[a]t no time . . . instructed or asked [Plaintiff] to
return his keys, remove his belongings, or otherwise surrender the unit,” and that
Defendants “failed to comply with the statutory notice requirements” and “never filed any
eviction document or complaint in the Walton local court or the State of New York.” Id.
at pp. 3-5 & 7. Plaintiff further claims that Defendants failed to properly store personal
property owned by Plaintiff that Defendants removed from the apartment. Id. at p. 14.
II. GOVERNING LEGAL STANDARD
28 U.S.C. § 1915(e) directs that, when a plaintiff seeks to proceed in forma
pauperis, “(2) . . . the court shall dismiss the case at any time if the court determines that
– . . . (B) the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which
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relief may be granted; or (iii) seeks monetary relief against a defendant who is immune
from such relief.” 28 U.S.C. § 1915(e)(2)(B).1
In reviewing a pro se complaint, the court has a duty to show liberality toward pro
se litigants, see Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam), and should
exercise “extreme caution . . . in ordering sua sponte dismissal of a pro se complaint
before the adverse party has been served and both parties (but particularly the plaintiff)
have had an opportunity to respond,” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir.
1983) (internal citations omitted). 	Therefore, a court should not dismiss a complaint if
the plaintiff has stated “enough facts to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 	“A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556).
Although a court should construe the factual allegations in the light most favorable
to the plaintiff, “the tenet that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions.” 	Id. 	“Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.”
Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555). “[W]here the well-pleaded facts
1 To determine whether an action is frivolous, a court must look to see whether the complaint “lacks an arguable
basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
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do not permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged - but it has not show[n] - that the pleader is entitled to relief.” Id.
at 679 (quoting FED . R. CIV . P. 8(a)(2)). Rule 8 of the Federal Rules of Civil Procedure
“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555).
Thus, 	a 	pleading 	that 	only 	“tenders 	naked 	assertions 	devoid 	of 	further 	factual
enhancement” will not suffice. Id. (internal quotation marks and alterations omitted).
III. DISCUSSION
A. Proper Parties
Plaintiff Jorge Quintana, Sr. (“Plaintiff”) names as Defendants to this action
Elizabeth Haeussler (“Haeussler”) and 207 Delaware Street, Walton, New York 13856
(“207 Delaware Street”). Compl. at p. 1. While Haeussler, as the alleged owner of the
subject property, Compl. at p. 3, is a proper party to this action, the property address itself
is not a legal person or entity capable of being sued. Accordingly, the Court recommends
dismissal of 207 Delaware Street from this action.
B. Jurisdiction
It is well settled that a federal court, whether trial or appellate, is obligated to notice
on its own motion the basis for its jurisdiction. City of Kenosha, Wisconsin v. Bruno, 412
U.S. 507, 512 (1973); see also Alliance of Am. Ins. v. Cuomo, 854 F.2d 591, 605 (2d Cir.
1988) (challenge to subject matter jurisdiction cannot be waived); F ED. R. CIV . P. 12(h)(3)
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(court may raise basis of its jurisdiction sua sponte). When subject matter jurisdiction is
lacking, dismissal is mandatory. 	United States v. Griffin, 303 U.S. 226, 229 (1938);
Manway Const. Co. v. Hous. Auth. of City of Hartford, 711 F.2d 501, 503 (2d Cir. 1983);
FED . R. CIV . P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”). “Federal jurisdiction exists only when
a federal question is presented (28 U.S.C. § 1331), or where there is diversity of
citizenship and the amount in controversy exceeds $75,000 (28 U.S.C. § 1332).” Boimah
v. New York State Workers’ Comp. Bd., 2018 WL 3850785, at *2 (N.D.N.Y. July 9, 2018),
report and recommendation adopted, 2018 WL 3850630 (N.D.N.Y. Aug. 13, 2018)
(internal quotation omitted).
The Complaint identifies the basis for jurisdiction in this case to be diversity of
citizenship under 28 U.S.C. § 1332(a)(1). Compl. at p. 4. “Diversity jurisdiction exists
where the parties are citizens of different states and the amount in controversy exceeds
$75,000.” 	Ceglia v. Zuckerberg, 772 F. Supp. 2d 453, 455 (W.D.N.Y. 2011). 	“A case
falls within the federal district court’s original diversity jurisdiction only if diversity of
citizenship among the parties is complete, i.e., only if there is no plaintiff and no
defendant who are citizens of the same State.” Wisconsin Dep’t of Corr. v. Schacht, 524
U.S. 381, 388 (1998) (internal quotations omitted). 	Additionally, for purposes of
determining whether the amount in controversy requirement is satisfied, “[t]he amounts
of damages claimed by the Plaintiff are presumptively valid and assumed to be in good
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faith, and may be rejected only upon a showing to a legal certainty that the claim is
actually for less than the jurisdictional amount to justify dismissal.” 	Gucciardo v.
Reliance Ins. Co., 84 F. Supp. 2d 399, 402 (E.D.N.Y. 2000) (citing Wolde-Meskel v.
Vocational Instruction Project Community Services Inc., 166 F.3d 59, 63 (2d Cir. 1999);
Chase Manhattan Bank N.A. v. American National Bank and Trust Co., 93 F.3d 1064,
1070, 1070 (2d Cir. 1996)).
“New York Real Property Actions and Proceedings Law section 853 . . . provides
a remedy for individuals subject to evictions undertaken in an unlawful manner.” Beck-
Green v. Town of Fine, New York, 2018 WL 6329835, at *4 (N.D.N.Y. Dec. 4, 2018),
report and recommendation adopted, 2019 WL 1493219 (N.D.N.Y. Apr. 4, 2019). Here,
Plaintiff has sufficiently pled complete diversity of citizenship between the parties by
stating that the Plaintiff is a citizen of the State of Florida, Haeussler is a citizen of the
State of New York, and 207 Delaware Street is located in the State of New York. Compl.
at pp. 1-2. In addition, Plaintiff has sufficiently alleged an amount in controversy greater
than $75,000. 	See Compl. at pp. 14-18. 	On a claim under section 853, a plaintiff “is
entitled to recover treble damages.” N.Y. R.P.A.P.L. § 853. “Damages for the removal,
destruction[,] or discarding of property in the course of an unlawful eviction are included
under RPAPL § 853.” 	H & P Rsch., Inc. v. Liza Realty Corp., 943 F. Supp. 328, 330
(S.D.N.Y. 1996) (citing cases). As a component of the damages for which Plaintiff seeks
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recovery, Plaintiff alleges that the following items owned by Plaintiff were illegally
removed and stolen by Haeussler:
all clothes, computers, tvs, three bedroom set furniture, furniture (sofa,
chairs, etc.,) kitchenware, the food that also was in the refrigerator, guns,
snowboards, surfboards, windsurfing boards, kite boards with parachutes,
watches, jewelry, cash money $3,200.00, 	shoes, sneakers, a caps/hats
collection, 	bikes 	– 	ebikes, 	and 	other 	items 	including 	a 	[sic] 	air
conditioning/heat unit that was outside to be installed in the apartment,
antique furniture inside the garage and a wooden canoe, others hobie [sic]
kayak, and other items.
Id. at p. 14. At this juncture, the damages claimed by Plaintiff are “presume[ed] valid”
and “the inquiry . . . end[s] here.” Gucciardo v. Reliance Ins. Co., 84 F. Supp. 2d at 402.2
Accordingly, the Court recommends a finding that it has subject matter jurisdiction over
this action.
C. Eviction and Ejectment
In support of Plaintiff’s first cause of action for self-help eviction, second cause of
action for unlawful eviction and unlawful ejectment, and fourth cause of action for
ejectment, Plaintiff claims that Plaintiff and Haeussler entered into a lease agreement,
dated November 7, 2019, whereby Plaintiff leased the apartment located at the property
from Haeussler. Compl. at pp. 3 & 8. Plaintiff also alleges that, despite Plaintiff paying
the rent “fully . . . in the month of January of each year” and “never abandon[ing] or
2 The Court notes that facts developed during discovery may “shed light” on Plaintiff’s claimed damages and “reveal
that the Plaintiff’s claim could not reach the jurisdiction threshold” required for the Court to maintain this action.
Gucciardo v. Reliance Ins. Co., 84 F. Supp. 2d at 403 (citations omitted).
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surrender[ing] . . . his tenancy,” “[o]n or about November of 2024, . . . Haeussler caused
an unlawful eviction of Plaintiff by intentionally relisting and re-renting the [apartment]
while aware that Plaintiff [wa]s the tenant and legal occupant of the [apartment].” 	Id.
Further, Plaintiff claims that Haeussler engaged in “self-help” by “changing locks,”
“shutting off utilities,” and “removing . . . Plaintiff[’s] personal property located inside
the apartment, outside the apartment[,] and in the garage of the rental property.” Id. at p.
7. Plaintiff asserts that Haeussler did not “follow proper procedure” in evicting Plaintiff,
and that Plaintiff was “[a]t no time . . . instructed or asked to return his keys, remove his
belongings, or otherwise surrender the unit.” Id. at pp. 7-8.
“Under New York law, a plaintiff must establish, among other things, that he is
the owner of the real property at issue to prevail on a cause of action for ejectment.”
Simpson-Quin v. Montejano, 2025 WL 81226, at *8 (S.D.N.Y. Jan. 13, 2025) (citation
omitted). In Simpson-Quin v. Montejano, the “[p]laintiff d[id] not allege that he owned
the [apartment],” but instead alleged “that he was a tenant in the [a]partment building.”
Id. Consequently, the court surmised that, “despite naming the cause of action unlawful
ejectment, it appear[ed] [p]laintiff intended to plead unlawful or wrongful eviction” and,
for purposes of evaluating the defendant’s motion to dismiss, construed plaintiff’s claim
against the defendant to be one for unlawful eviction. Id. at *1 & *8.
Here, like in Simpson-Quin v. Montejano, the Court recommends finding that
Plaintiff cannot prevail on a claim for ejectment because Plaintiff does not allege that he
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owned the subject apartment. However, given that Plaintiff also brings a cause of action
for unlawful eviction and alleges that he entered into a lease agreement with Haeussler
for the rental of the apartment, the Court reviews Plaintiff’s Complaint to determine if
Plaintiff has sufficiently stated a claim for illegal eviction.
“To establish an illegal eviction claim, a plaintiff must show he was ‘disseized,
ejected, or put out of real property in a forcible or unlawful manner, or, after he has been
put out, is held and kept out by force or by putting him in fear of personal violence or by
unlawful means.’” Adams v. City of New York, 2024 WL 3875772, at *10 (E.D.N.Y. Aug.
19, 2024) (quoting N.Y. Real Prop. Acts. § 853) (other citations and quotations omitted).
Here, given Plaintiff’s allegations that he was unlawfully removed from the apartment
that he was renting from Haeussler, see Compl. at pp. 3, 7, & 8, he has sufficiently alleged
an unlawful eviction claim sufficient to require a response. See Beck-Green v. Town of
Fine, New York, 2018 WL 6329835, at *4; Breon v. Perales, 2015 WL 7289399, at *6
(W.D.N.Y. Nov. 16, 2015) (holding that plaintiff “alleged a plausible cause of action
under RPAPL § 853” where the complaint alleged that plaintiff “was ejected from real
property (her room at 42 Belfast Street) in an unlawful manner”). Accordingly, the Court
recommends that Plaintiff’s causes of action for eviction be permitted to proceed, thereby
warranting a responsive pleading from Haeussler.
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D. Injunctive Relief
Plaintiff’s third cause of action seeks a permanent injunction against Haeussler.
Compl. at p. 9. 	More specifically, Plaintiff asks the Court to “enjoin[], restrain[,] and
bar[] defendants . . . from further violating 	Plaintiff’s rights 	and from 	seeking to
improperly and/or illegally remove him from his legal possession and occupancy of the
[apartment].” Id.
A plaintiff seeking a permanent injunction must allege:
(1) that it has suffered an irreparable injury; (2) that remedies available at
law, such as monetary damages, are inadequate to compensate for that injury;
(3) that, considering the balance of hardships between the plaintiff and
defendant, a remedy in equity is warranted; and (4) that the public interest
would not be disserved by a permanent injunction.
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 156-57 (2010) (quotation omitted).
To establish irreparable harm, the “potential injury . . . must be irreparable; that is, it must
be the kind of injury for which an award of money cannot compensate.” 	Old Republic
Ins. Co. v. Hansa World Cargo Serv., Inc., 170 F.R.D. 361, 385 (S.D.N.Y. 1997)
(quotation omitted). 	Consequently, “if it appears that the potential harm to the
[requesting] party is simply a monetary loss, the potential injury is normally not deemed
irreparable[,] and hence does not justify injunctive relief.” 	Id. (citations and quotations
omitted).
Here, the injuries claimed by Plaintiff “are monetary obligations and expenditures
due to defendant’s alleged wrong-doing.” Id. In fact, through the other causes of action
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asserted in the Complaint, Plaintiff seeks monetary damages for the same conduct that
forms the basis of Plaintiff’s claim for a permanent injunction: Haeussler’s allegedly
improper and illegal removal of Plaintiff “from his legal possession and occupancy of the
[p]remises.” Compl. at p. 9. As such, Plaintiff’s “claimed injury is precisely the type of
harm which injunctive relief is not designed to remedy.” Old Republic Ins. Co. v. Hansa
World Cargo Serv., Inc., 170 F.R.D. at 385 (emphasis in original). Accordingly, the Court
recommends that Plaintiff’s third claim for relief, in the form of a permanent injunction,
be dismissed for failure to state a claim upon which relief can be granted.
E. Harassment and Private Nuisance
In support of Plaintiff’s fifth cause of action for harassment, Plaintiff claims that
“[D]efendants have engaged in deliberate, systematic[,] and malicious harassment of
Plaintiff, repeatedly involving interruptions or discontinuances of essential services, and
substantial interference with his comfort, repose, peace, quiet[,] and safety in the
[apartment], for purposes of impairing the habitability of his home.” 	Compl. at p. 11.
Plaintiff alleges that such essential services have included “[c]arbon monoxide exposure;
lack of a valid Certificate of Occupancy; [and] misrepresentation of the rent regulatory
status of the Premises,” that Plaintiff has suffered “severe emotional distress,” and that
“[D]efendants . . . lie[d] to the insurance provider and guarantor of the Plaintiff” by
stating that “Plaintiff had been evicted and owed.” Id.
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Here, 	“[i]t 	is 	unclear 	under 	which 	provision 	of 	federal 	or 	state 	law 	this
‘harassment’ claim is based on.” Vorburger v. JP Morgan Chase Bank, N.A., 2019 WL
4805818, at *3 (S.D.N.Y. Sept. 30, 2019). 	To the extent that Plaintiff’s claims can be
construed as Plaintiff attempting to allege that Haeussler created a hostile housing
environment, Plaintiff has not sufficiently pled: “(1) that the [P]laintiff was subjected to
harassment that was sufficiently pervasive and severe; (2) the harassment occurred
because of the [P]laintiff’s membership in a protected class; and (3) [Haeussler] is
responsible for the allegedly harassing conduct.” Glover v. HPC-Eight, LLC, 2022 WL
1004572, at *10 (D. Conn. Apr. 4, 2022). Accordingly, the Court recommends dismissal
of Plaintiff’s fifth cause of action for harassment.
Similarly, in support of Plaintiff’s seventh cause of action for private nuisance,
Plaintiff claims that “[D]efendants have engaged in a course of conduct of harassing
Plaintiff by repeated interruptions of discontinuances of essential services, and substantial
interference with his comfort, repose, peace, quiet[,] and safety in the [apartment], for
purposes of impairing the habitability of his home,” as well as “to seriously impair
Plaintiff’s use and enjoyment of the [apartment].” Compl. at p. 13.
To state a claim for private nuisance, Plaintiff must show that Haeussler’s “conduct
is a legal cause of the invasion of the interest in the private use and enjoyment of land.”
Morris v. Flaig, 2005 WL 8157008, at *8 (E.D.N.Y. July 29, 2005) (quoting Copart
Industries, Inc., v. Consolidated Edison Co. of New York, Inc., 41 N.Y.2d 564, 569
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(1977)). 	Notably, “[w]here the source of the nuisance exists on the plaintiff’s own
property, . . . the requisite invasion is absent and no action for private nuisance may be
maintained.” Id. (citations omitted); see also Chase Manhattan Bank, N.A. v. T & N PLC,
905 F. Supp. 107, 127 (S.D.N.Y. 1995) (same). 	Consequently, in Morris v. Flaig, the
court granted “the defendants’ motion for summary judgment as to the plaintiffs’ claim
of private nuisance” because “the source of the claimed nuisance [wa]s on the premises
and not from any outside source.” Morris v. Flaig, 2005 WL 8157008, at *8. Likewise,
in Copart Industries, Inc., v. Consolidated Edison Co. of New York, Inc., the court granted
defendant’s motion for summary judgment with respect to plaintiff’s nuisance cause of
action because “the alleged nuisance harming the plaintiff [wa]s present in the plaintiff’s
building itself.” Chase Manhattan Bank, N.A. v. T & N PLC, 905 F. Supp. at 126.
Accordingly, the Court recommends dismissal of Plaintiff’s seventh cause of
action for private nuisance.
F. Intentional Infliction of Emotional Distress
Plaintiff’s sixth cause of action for intentional infliction of emotional distress
(“IIED”) alleges that:
[D]efendants 	have 	engaged 	in 	deliberate, 	systematic[,] 	and 	malicious
harassment 	of 	Plaintiff, 	repeatedly 	involving 	interruptions 	or
discontinuances of essential services, and substantial interference with his
comfort, repose, peace, quiet[,] and safety in the [apartment], for purposes of
impairing the habitability of his harm, . . . by illegally renting the apartment
to a family without evicting the Plaintiff.
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Compl. at p. 11. 	Plaintiff also claims that Defendants “threaten[ed] to and report[ed]
unenforceable 	rent 	demands 	to 	credit 	reporting 	agencies, 	ma[de] 	fraudulent
misrepresentations to, and collect[ed] unenforceable payments from, Plaintiff’s insurance
providers 	and 	re-list[ed] 	and 	re-rent[ed] 	the 	[apartment] 	while 	fraudulently
misrepresenting to buyers that it was vacant while concealing Plaintiff’s tenancy.” Id. at
p. 12. 	Plaintiff asserts that Defendants’ actions have caused him “to suffer severe
emotional distress, including chronic stress and anxiety and painful uterine fibroid
symptoms, headache, and acute periods of fear, desperation, vulnerability, depression,
hopelessness, and sleeplessness, and more damages to Plaintiff[’s] stage 4th [sic]
metastatic cancer.” Id.
“[A]n intentional infliction of emotional distress claim requires a showing of: (1)
extreme and outrageous conduct; (2) intent to cause, or reckless disregard of a substantial
probability of causing, severe emotional distress; (3) a causal connection between the
conduct and the injury; and (4) severe emotional distress.” Lopez v. YWCA of N. E. New
York, 2025 WL 2617454, at *21 (N.D.N.Y. Aug. 12, 2025) (citations and quotations
omitted). 	“There can be liability under this tort only where the conduct has been so
outrageous in character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.”
Id. (quotations omitted). 	“Whether the alleged conduct is sufficiently outrageous to
satisfy [this element] is a matter of law for a court to decide.” 	Id. (quotations omitted).
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“[A]n emotional distress claim is ‘highly disfavored’ under New York law and ‘is to be
invoked only as a last resort.’” Benacquista v. Spratt, 217 F. Supp. 3d 588, 606 (N.D.N.Y.
2016) (quoting Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 158 (2d Cir. 2014)).
Here, Plaintiff’s allegations fail to state a prima facie claim of IIED. 	“Indeed,
courts have dismissed IIED claims involving much more severe conduct than that alleged
here.” Avila v. Acacia Network, Inc., 2025 WL 2622619, at *7 (S.D.N.Y. Apr. 3, 2025),
report and recommendation adopted, 2025 WL 2233987 (S.D.N.Y. Aug. 6, 2025) (citing
Stella v. County of Nassau, 896 N.Y.S.2d 357, 357 (1st Dep’t 2010) (holding that
plaintiffs’ allegation that “defendants illegally evicted [plaintiffs] from the premises,
ransacked 	their 	possessions, 	prevented 	them 	from 	removing 	their 	property, 	and
videotaped the proceedings . . . d[id] not, as a matter of law, constitute sufficient grounds
for intentional infliction of emotional distress”); see also Mendy v. JP Morgan Chase &
Co., 2014 WL 1224549, at *9 (S.D.N.Y. Mar. 24, 2014) (holding that, “[t]o the extent
that [p]laintiff’s . . . IIED . . . claim relates to [d]efendants’ reporting to credit reporting
agencies, the claim is preempted and will be dismissed”); Kong v. Dajin Reality, Inc.,
2024 WL 168325, at *3 (E.D.N.Y. Jan. 16, 2024), appeal dismissed sub nom. Kong v.
Dajin Realty Inc., 2024 WL 5343835 (2d Cir. Apr. 10, 2024) (holding that “Defendants’
commencement 	of 	the 	nonpayment 	proceedings 	does 	not 	constitute 	extreme 	and
outrageous conduct”). Accordingly, the Court recommends that Plaintiff’s sixth cause of
action for IIED be dismissed.
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G. Bailment and Conversion
Plaintiff’s 	eighth 	cause 	of 	action 	alleges 	that 	Haeussler 	is 	the 	bailee 	and
warehouseman under New York General Business Law, and seeks recovery for illegal
conversion. Compl. at p. 14. Plaintiff alleges that Haeussler never filed for an eviction
against Plaintiff, removed the door to the apartment, and illegal removed and stole all of
Plaintiff’s personal property inside the apartment, outside the apartment, and in the garage
of the property. Id. More specifically, Plaintiff claims that Haeussler illegally removed
and 	stole 	Plaintiff’s 	clothing, 	electronics, 	furniture, 	jewelry, 	athletic 	and 	outdoor
equipment, money, and other personal belongings. 	Id. 	Plaintiff further asserts that
Haeussler has admitted to never storing said property. See id. at pp. 14-15.
“To state a claim for conversion under New York law, a plaintiff must show that
someone, intentionally and without authority, assume[d] or exercise[d] control over
personal property belonging to someone else, interfering with that person’s right of
possession.” Cayuga Nation by & through Cayuga Nation Council v. Parker, 2023 WL
130852, at *10 (N.D.N.Y. Jan. 9, 2023) (quotation omitted). 	“An essential element of
conversion is the ‘unauthorized dominion’ to the exclusion of the right of the plaintiff.”
Id. (quotation omitted). 	In Cayuga Nation by & through Cayuga Nation Council v.
Parker, the court held that defendants had “sufficiently state[d] a plausible claim for relief
for conversion” to withstand plaintiff’s motion to dismiss by alleging that plaintiff “took
possession, 	without 	authority, 	of 	[d]efendants’ 	cash, 	computers, 	inventory, 	tools,
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equipment, including improved gas pumps and premises, at [the property] and ha[d]
excluded [d]efendants, since that date, from the premises, and ha[d] utilized the property
and premises as its own, selling [d]efendants’ inventory for its own benefit.” Id.
In addition, with regard to Plaintiff’s claim that Haeussler became the bailee and
warehouseman over Plaintiff’s personal property, New York General Business Law
(“GBL”) § 609 provides that “[a]ny consumer bailor damaged by an unlawful detention
of his goods or any other violation of this article may bring an action for recovery of
damages and the return of his goods.” N.Y. Gen. Bus. Law § 609(1). In Jin-Jo v. JPMC
Specialty Mortg. LLC, a house rented by plaintiff was sold at a foreclosure sale, which
prompted eviction proceedings against the occupants of the house. See Jin-Jo v. JPMC
Specialty Mortg. LLC, 2013 WL 12234704, at *1 (W.D.N.Y. Aug. 13, 2013), report and
recommendation adopted sub nom. Jo v. JPMC Specialty Mortg., LLC, 131 F. Supp. 3d
53 (W.D.N.Y. 2015). 	Upon plaintiff’s eviction from the house, a moving company
removed plaintiff’s property from the house. See id. at *1-2. However, “there [wa]s no
indication that plaintiff chose . . . not to take her personal property from the premises, or
that she abandoned it.” 	Id. at *5. 	The court, in evaluating plaintiff’s claim pursuant to
GBL § 609 on defendant’s motion for summary judgment, stated that, while “a marshal
has the right to remove a tenant’s property of value still left in an apartment more than 72
hours after the tenant has been served with a warrant of eviction,” “the landlord is
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responsible for the cost of storing the property for a reasonable period until it is claimed
by the tenant.” Id. at *4.
Here, Plaintiff has sufficiently stated facially plausible claims for conversion and
bailment. 	Plaintiff has alleged that Haeussler removed and stole Plaintiff’s personal
property from the premises without Plaintiff’s authority. 	Compl. at p. 14. 	Further,
Plaintiff has asserted that Haeussler’s unauthorized dominion over Plaintiff’s personal
property is to the exclusion of Plaintiff and, in that regard, claims that Haeussler
improperly failed to store Plaintiff’s personal property for Plaintiff to retrieve. Id. at pp.
14-15. 	Accordingly, the Court recommends that Plaintiff’s eighth cause of action for
conversion and bailment be permitted to proceed, thereby warranting a responsive
pleading from Haeussler.
IV. CONCLUSION
For the reasons stated herein, it is hereby
RECOMMENDED, that Plaintiff’s Complaint be DISMISSED with prejudice
as to Defendant 207 Delaware Street, Walton New York; and it is further
RECOMMENDED, that Plaintiff’s Complaint be DISMISSED with prejudice
as to the third, fourth, and seventh causes of action, and Plaintiff’s claim for
ejectment; and it is further
RECOMMENDED, 	that 	Plaintiff’s 	fifth 	and 	sixth 	causes 	of 	action 	be
DISMISSED with leave to amend; and it is further
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RECOMMENDED, that Plaintiff’s first, second, and eighth causes of action
be permitted to proceed and Defendant Elizabeth Haeussler be directed to respond;
and it is
ORDERED, 	that 	the 	Clerk 	of 	the 	Court 	serve 	a 	copy 	of 	this 	Report-
Recommendation and Order upon the parties to this action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14)3 days within
which to file written objections to the foregoing report. 	Such objections shall be filed
with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN
FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. 	Roldan v.
Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs.,
892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); F ED . R. CIV . P. 72 & 6(a).
Dated: December 17, 2025
Albany, New York
3 If you are proceeding pro se and are served with this Order by mail, three additional days will be added to the
fourteen-day period, meaning that you have seventeen days from the date the order was mailed to you to serve and
file objections. F ED. R. CIV. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal
holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday.
FED. R. C IV. P. 6(a)(1)(C).
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