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Gassman v. Reason

Appeals Court of Massachusetts, Suffolk

August 11, 2016

ELIZABETH GASSMAN
v.
KINZY REASON.

          Heard: May 10, 2016.

         Complaint for protection from harassment filed in the Brighton Division of the Boston Municipal Court Department on June 13, 2013.

         The case was heard by David T. Donnelly, J., and hearings to extend a harassment prevention order were had before Thomas S. Kaplanes, J., and Patricia E. Bernstein, J.

          Jillise McDonough for the defendant.

          Present: Grainger, Hanlon, & Agnes, JJ.

          HANLON, J.

         The defendant, Kinzy Reason, appeals from the extension of a harassment prevention order issued pursuant to G. L. c. 258E, in the Brighton Division of the Boston Municipal Court. She argues that the order was improperly issued and wrongly extended. After a review, we are satisfied that, despite the fact that the order has now expired, the issue is not moot and therefore is properly before us. In addition, we agree that the order should not have been extended.[1]

         Background.

         The parties lived in the same public housing complex in Brighton; the plaintiff, Elizabeth Gassman, lived in an apartment on the third floor of the building, and Reason lived on the second floor in the apartment directly below Gassman's apartment. Apparently, Gassman played the piano frequently and her playing was a source of considerable irritation for Reason.

         On June 13, 2013, Gassman sought an ex parte harassment prevention order against Reason, pursuant to G. L. c. 258E.[2] There was a short hearing; the judge asked several questions about a prior proceeding, [3] and then Gassman was sworn. The judge asked her, "Are you in fear of your safety?" Gassman responded, "Yes." The judge also asked some questions about the relative locations of the parties' apartments, the placement of the building elevator and the laundry room, and the location of a music school that Gassman was attending. After the hearing, the judge issued an ex parte order, ordering Reason to stay ten yards away from Gassman when in the building where both parties lived, not to enter the third floor of the building, to stay fifty yards away when outside the building, and to stay away from Gassman's music school. A hearing after notice was scheduled for June 25, 2013.

         The hearing apparently was held before the same judge and he extended the order for a year. According to an entry on the order, Reason was present; the record does not contain a transcript of that hearing or any indication of what testimony or other evidence the judge heard.

         At the end of the year, Gassman again sought to extend the order, this time before a different judge. In response to the judge's question about what Gassman wished to do, she replied that she wished to report a violation of the existing harassment order and offered police reports. She also told the judge that she wanted the harassment order extended and that Reason "be evicted for six years of unrelenting harassment of [her]." Gassman told the judge that Reason had "called the police on [her] four -- to [her] door four times for playing the piano."[4]She complained that the defendant had violated the order by "standing smack in front of the elevator door, " forcing the plaintiff to walk by "within six inches of her." Gassman finished by saying, "After that, the only time she complied with the -- When we encountered each other, all of which were chance encounters because that's life, I'm not following her, she's not following me."

         Nonetheless, Gassman maintained that Reason was a danger to her and, when the judge asked why, she responded,

"Because . . . she lied to the police. She's lied to the BHA. She's lied in a civil rights complaint. She is capable of making up any story that suits her and she is determined to do harm to me. It started when she moved in the building, the first week she lived there, in 2009 when she started going to the office complaining I was playing the piano. I have a noise measurement report from the [c]ity of Boston. It was done at my request."
Judge: "Okay."
Plaintiff: "That measures the sound in her apartment as [forty-eight] decibels or below, far below the [seventy-eight] decibels allowed by law. Despite being given that report, she called the police to my door four times ... in the next years, complaining about I was disturbing the peace. On not a single occasion did the police find me violating the --disturbing the peace, and in fact they apologized for disturbing me."
Judge: "Okay."
Plaintiff: "Then we had a period when I didn't hear from her, and then suddenly last year I get an assault and battery charge. I walked by her in the hallway, absolutely nothing took place, and the next thing I know, four weeks later I get a summons to appear in court on an assault and ...

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