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
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