Misstatements from Feb. 23, 2021 board meeting and an update on the 3B’s case

 

Dear Bristol Harbour Neighbors, Certain misstatements made by board member during Tuesday nights board meeting must be corrected. The action brought by Fields has no bearing what so ever on the three B's legal proceedings. The BOD misrepresented the Fields' desire for unfettered access by non residents. Fields request would allow only a small number of non resident slip renters to access their boat, or kayak. They will have controlled fob access to the elevator. Fields are not requesting non resident access for beach privileges or any other purpose or privileges. At no time have Fields requested "unfettered access" for the GENERAL PUBLIC; any such statement made by the board is erroneous. Three B's Case As was stated in Acting Supreme Court Justice Frederick G Reeds Decision and Order in action No.2 dated Feb. 17, 2021, Buckley, Braun and Bachman commenced an action against the BHVA Board challenging assessments, the manner in which they could be levied, the number of directors to be elected or appointed and certain other procedural matters. The action commenced by the Plaintiffs (now known as the three B's) sought only to compel the board to comply with existing By- Laws. Subsequent to commencement of the action and prior to the argument, the Board corrected certain errors of its own volition. The action No.1, was dismissed by Justice O'deresy on a technicality i.e. the failure to name BHVA in addition to the Directors to the BOD as the defendant. Plaintiffs, three B's were given the right to reinitiate action No.1 if they so elected. THERE WAS NEVER A DECISION ON THE MERITS IN ACTION NO.1.  Action no. 2, commenced by the Three B's to vacate liens filed by Board President Halleran, Justice Reeds' decision was granted on a motion for Summary Judgment made by the Plaintiff Three B's attorney (no trial necessary as a matter of law). The Board is correct in one respect only, they can appeal. Their chances of success are minimal at best, and will cost this community a waste of more money.  The Board in its response to Acting Justice Reeds Decision/Order (in action No.2) states it was completely vindicated on the merits. THAT STATEMENT IS IN ALL RESPECTS NOT ACCURATE. The Three B's initial lawsuit was dismissed on a technical ground with leave to refile should they elect to do so. They did not refile as the most serious issues were resolved voluntarily by the Board prior to argument. Are BHVA residents responsible for the Boards' legal fees in either action? We don’t think so, By-Law Sec.7.03 is controlling in this matter. The By-Law in substance provides that BHVA Officers / Directors and others who become parties to litigation to procure judgement in favor of the Association “MAY” be indemnified as to  “reasonable expenses necessarily incurred including attorneys fees except as to matters where it is adjudged that such Officer / Director breached his/her duty to the Association". Sec. 7.03 further provides that in an action where the Officer/Director etc. is made a party by reason of his service he /she may be similarly indemnified if he/she acted in good faith for a purpose he/ she reasonably believed to be in the best interests of the Association. Applying the standards set forth in By- Law 7.03 to the Three B's actions, should the Board be indemnified as to attorneys fees and expenses in action No. 1?: The Board's attorney fees were not fixed by Court Order Absent a court order based on statutory authority, there is no basis for an award in case No. 1. The Board's attorneys have no independent right to fix Plaintiffs obligation to them. The Board's attorneys mailed each of the Three B's a one-phrase bill stating attorneys fees due $108,793.03. No legal basis exits, which requires payment of BHVA attorney fees by the Three B's. Plaintiffs demanded an itemized statement setting forth with particularity the basis for the fees claimed due and owing. No itemized bill was ever provided. In view of all of the foregoing, it is clear that the board did not meet the Indemnification threshold established pursuant to By-law 7.03 in action no. 1. Should the Board be indemnified as to costs and attorneys fees in action no.2? The action brought by the Three B's to vacate liens recorded as against the properties owed by Buckley, Braun and Bachman. The obvious answer is no. Clearly the Board did not act in the best interest of BHVA: Even if there existed a valid claim for legal fees due and owing by the Three B's, they could have been collected by means of a legal action commenced to collect the same. Any judgement could have been collectable by attaching other assets such bank accounts, stock or other personal property. The liens were specifically directed against Mark and Donna Buckley whose home had been sold with a closing scheduled, in an effort to collect illegal fees out of sales proceeds. Acting Supreme Court Justice Frederick G. Reed in granting Plaintiffs motion for Summary  Judgement determined that the Boards' actions were “undertaken solely as an attempt to intimidate, harass and maliciously injure the Plaintiffs by slandering the title to their real property in retaliation for daring to challenge the Board of Directors.” The fees claimed to be due and owing by the Boards attorneys do not in any event constitute common charges PRLSec.339-E(4) and are not therefore subject to a lien. Real Prop. LawSec399-Z.   The Board has not by any stretch of the imagination acted in good faith, nor can their actions in any manner be construed to be in the best interests of Bristol Harbour Village. BHVA must not be burdened with the expense of attorneys fees needlessly incurred. BHVA is in addition entitled to an itemized statement from the NY attorneys retained at the urging of Mr. Kim; the statement must include identification of the persons who actually did the work, the time allocated to each item of work, and including a statement as to any fee sharing and or payments made to any third parties. As a result of the fees incurred by the Three B's in action No.2 an application can be made to Acting Justice Reed for an award of sanctions to be paid by the BOD individually in action No.2, in addition to sanctions which may still be applied for by the 3B's in action No.1. If you are so inclined to join us in our effort to recall this current board of directors and replace them with dedicated individuals that will faithfully serve this community following our Bi-Laws and Declarations. Please go to the Friends of Bristol Harbour and sign the petition calling for a Special Meeting. You must be a resident in good standing in BHVA, meaning you are current with you HOA fees and have paid your $800.00 Special Assessment. To access the Friends of Bristol Harbour website Click Here Regards, Friends of Bristol Harbour

Message from 4 Presidents about the elevator issues

 Click on the link for the Message from the 4 Presidents sent Feb. 20, 2021.

WHY was this sent out by the BHVA board of directors???

CLICK HERE

Letter from an outside neighbor Mrs. Bessie Tyrrell - Member of Planning Board of the Town of South Bristol

 

Letter from Bessie Tyrrell

Wait a Minute by Bessie S Tyrrell I don’t live in Bristol Harbour, but that doesn’t mean what is happening there isn’t affecting me, I am your neighbor. Friends at the Harbour forwarded a letter titled “Legal Fees” that you received from your Board of Directors. The letter is long and complicated and doesn’t answer the questions I hear so many of you asking. Questions like: 1.  Why is it a good idea to put a lien on three of your neighbor’s properties when those folks were only asking for open meetings? 2.  Why were the legal fees of the 3 B’s for that action a fraction of what the Board’s were?   3.  Why is it okay to throw fecal material in the Field’s driveway and take mallets and destroy part of the wall in the parking garage the Field’s own?    4.  Why doesn’t your Board meet with you and answer your questions in person? 5.  How come posts are removed from Next Door for anyone who questions your Board?   6.  What is more commercial now about the marina? Nothing.  All of the dock additions conform to the plans approved 50 years ago on file with the State of NY.    Vilifying the fields, blaming them for all that is happening encourages an “Us vs Them“  environment. Is that helping? That culture creates dissension and blinds everyone to the solutions readily available. Is that endless culture war coming from the fields? Are Jeremy and Cathy putting liens on neighbors properties, taking posts down of anyone  who disagrees, refusing to answer your questions?  How do you stop this? You sign a petition making your Board of Directors accountable. The right to petition to hold your directors accountable is guaranteed by the Attorney General’s Office of the State of New York. Your action is what will change what is happening at Bristol Harbour. Go to the website and select 3 lines at the upper right, select Recall to sign the petition to recall this board. Petition available at: Friends at Bristol Habour Website  “Neutrality helps the aggressor, never the victim. Silence encourages the tormentor, never the tormented”

Attempt to communicate residents’ concerns about the news that we would not be able to access the waterfront this summer

 Communication with the BHVA Board of Directors

This is an email I sent to Connie Simmons because I am not sure how our Board of Directors want us to communicate with them.  I did not include the plea, I was just trying to find out how we can communicate with our elected Board of Directors.

========= Email =================

Connie, Bill Neidel here, 5543 Lakewood Trail.  I have a plea with 75

Bristol Harbour residents names, addresses and comments that I would

like to get to our Board of Directors.  What is the recommended means

of getting that information to them? Time is critical.  I have

attached the info to this email if it expedites the process. Thank

you.

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Here is Connie’s response:

Bill:

I forwarded your email to the Board.

Connie

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My reply to Connie:

Is that the preferred and/or the only way to get to the board?  Can I send an email directly to Pat King or Laura Halleran?

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Here is Connie’s response:

Bill:

You can send things directly to Board Members or you can send to me and I can forward - whichever you prefer.

Connie

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AND THEN I RECEIVED THIs FROM CONNIE:

Bill:

The Board would like you to submit the following notarized statement with the next petition.

Connie

Notary should state:

I, Bill Neidel, declare under oath that I have personally confirmed all signatures to be authentic and that they are signed by the person as hereby listed under name and address in this petition. I accept any liability for any and all expenses incurred by BHVA in pursuing any action of any sort legal or otherwise for fraud or misrepresentation in this petition application.   

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Here is my response to that BS:

Connie, please get this reply to the board based on your reply to me.  Are you telling me that a communication to the board requires this level of crap. My previous email was a plea not a petition. I was just asking what the preferred method of communication was. It sounds like the board does not NOT want to hear anything from the community if it is not aligned with their thinking.   Here is the plea in case you can send it to the board without a notarized statement.  They need to trust that not everyone in the community agrees with what they are doing.

Plea to the Bristol Harbour Board of Directors to Work with The Fields and Attorneys to Open the Waterfront for the 2021 Season

 

We, the undersigned, are Bristol Harbour residents and are extremely upset to hear that access to the waterfront will not be available for the 2021 season. Our understanding is that Fields Enterprises Inc. is willing to work with the current BOD to resolve all issues on the table to move the elevator repair project forward and open up access to the beach and marina for the upcoming season. We encourage you, our Board of Directors and our attorneys to reach out to the Fields and their attorneys to begin working through the issues. We are running out of time and implore you to take the first step to getting this resolved.

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Jacob Liebowtz on ND

Bill Neidel are you going to sign the statement attesting to the authenticity of the petition? 

Point of clarification, a list of signatures along with a demand submitted through official channels to our governing officers is a petition even if you call it a “plea” and use the word “implore” instead of “demand”.

Robert Wendorff on Nextdoor

Jacob..your being very gracious In your reply comment to Bill...I commend you for that ...I have never seen this document with the so called signed plea of 100 of my community members ....it would be nice to see it ...the  BOD request for legitimacy in this situation is well within their legal rights.

This is the response I put on Nextdoor

Gentleman, let me try to clear up what I was attempting to get answered.  There are at least 75 residents in good standing of Bristol Harbour who would like to voice their concerns about an issue critical to the welfare of the community, namely the use of the waterfront this summer.  I was trying to find out by contacting our property management company the best way these 75+ HOA dues paying residents could let their duly elected officials know they are not happy with the prospects of not having access to the waterfront.  Should each individual resident email one or all of the board?  I am really confused now.  Are notarized signed documents now required to communicate with the board? I am asking here how the 75+ residents should proceed.  I will also submit a QCC with the same question and hope to get an answer.

Message to Marina Customers - Feb. 3, 2021

 

Marina Letter, 2/3/21

Dear Marina customers, The BHVA continues to send out slanderous and erroneous emails about me personally and what has transpired over the course of the last two years. Please ask yourself this question: what motivation would I have to keep the elevator and stairs from being repaired? They are the lifeline to operating my business. Without them, there is no marina. This dispute is, and has been, about access to the marina. This dispute and the BOD’s lack of reasonableness is damaging my business. I have tried to solve the elevator issue since October 2019 and have not asked for anything from the BOD except standard protections in the event of an accident when work is being performed on my property. There are e-mails to support this.  There are two access issues here that the BOD is not being transparent about. First, the BOD has requested the ability to cross my property to the south of the beach for the purpose of bringing equipment to the elevator for use in the repairs. Contrary to the false statement in the BOD’s most recent communication, the BHVA’s Restated Declaration does not give BHVA the right to cross this property. BHVA has admitted as much in court filings when it sued me and asked the court to grant it an “easement by necessity” over this property. Of course, if the BHVA already had such an easement there would be no reason to use the community’s money seeking a court order granting one. Second, the BOD has admitted in multiple community communications that the elevator control room sits on my property. Again, contrary to the BOD’s false statement in their most recent communication, nothing in the Restated Declaration gives BHVA the right to cross a Lot owner’s property for any reason the BOD sees fit. The fact that the BOD has never pointed to the language in the Restated Declaration they claim to rely upon is telling. However, they appear to be relying on Section 10.01, which does provide BHVA with express easement rights for certain enumerated purposes, none of which address repairs to the elevator control room that encroaches on a Lot Owner’s property. I ask you to please read it and the sections before and after it. Despite these issues, I have offered to provide the BHVA with access to my property so the elevator can be repaired. Contrary to BHVA’s false statements, I have never conditioned a grant of access on being granted a contract to perform the repair work, or on the BHVA making any concessions in the pending litigation. The License Agreement I presented to the BHVA would not give me the right to control who can use the elevator or stairs—I have no interest in that. Instead, this is a bold-faced misrepresentation designed to lay the blame for the BHVA’s inability to repair a community asset at my feet. Please take a step back and realize that the BOD is not being transparent. It is my belief that the BOD’s ultimate end game is to get rid of me at all costs, even if it means weaponizing the elevator and closing the waterfront to the whole community. I have no plans of going anywhere—the marina is not for sale and many have stated that the community at large doesn’t even want to own the Marina as that would only mean more special assessments for the purchase, repairs and maintenance. I have been steadfast in my willingness to resolve all of the issues between me and the BHVA in a comprehensive fashion, or to resolve the elevator access issues separate and apart from those in the litigation for the good of the community. Those efforts have fallen on deaf ears as the BOD has refused to even sit down and discuss anything and, instead, has decided the best strategy is to spend hundreds of thousands of the community’s dollars on a scorched-earth campaign against me. Despite the BOD’s insistence on defaming me personally and professionally, I remain ready and willing to discuss and resolve these issues in good faith. The time to resolve this is now. This situation is worsening and I’m calling on the BOD to work with me to resolve these issues well before the summer season. We need to work together to get mutually beneficially access protocols in place as soon as possible. I urge the BOD to have their attorneys call mine. Or even better yet, someone on the BOD should call me so we can at least talk as neighbors and set aside our differences. Then we can leave it to the lawyers to hammer out the details. Sincerely, Jeremy Fields