Preview
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1 SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: CIVIL TERM: PART 54
2 --------------------------------------------x
JORDAN BARDACH, INDEX NO.:
3 159110/2023
Plaintiff(s)
4
- against -
5
ANNA MARTYNOVA, JENNIFER MILOSAVLJEVIC,
6 YOEL HERSHKOWITCH, ARON WOLOCOWITZ,
RENTABILITY, INC. (Nominal Respondent)
7
Defendant(s).
8 --------------------------------------------x
Microsoft Teams
9
60 Centre Street
10 New York, New York 10007
October 6, 2023
11
B E F O R E:
12 HONORABLE JENNIFER G. SCHECTER, J.S.C.
13
A P P E A R A N C E S:
14 LIBERMAN CANNA, LLP
Attorneys for Plaintiff
15 110 East 59th Street - 22nd Floor
New York, New York 10022
16 BY: BRETT G. CANNA, ESQ.
17 KUDMAN TRACHTEN ALOE & POSNER, LLP
Attorneys for Defendants
18 488 Madison Avenue - 23rd Floor
New York, New York 10022
19 BY: PAUL ALOE, ESQ.
JACOB S. REICHMAN, ESQ.
20
ANGELYN JOHNSON & ASSOCIATES, LLC
21 Attorneys for Nominal Defendant
26 Court Street - Suite 2610
22 Brooklyn, NY 11201
BY: ANGELYN D. JOHNSON, ESQ.
23
24 Kitty S. Acosta
Senior Court Reporter
25
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1 THE COURT: Good morning, everyone.
2 Boy, what a mess we have here.
3 So let me start off by saying that I don't see
4 today as anything monumental happening and I just want to
5 confirm, Kitty, that you are with us, correct?
6 COURT REPORTER: Yes, Judge, I am.
7 THE COURT: Okay, wonderful.
8 I don't see anything earth-shattering happening
9 today. I have problems with the situation galore. I will
10 absolutely give the Petitioner a chance to respond to the
11 cross motion. And I absolutely see this as going to a
12 hearing because, quite frankly, I see major issues of fact
13 here that cannot be resolved without credibility assessments
14 that are material. I am not convinced at this point one way
15 or the other whether -- And I am going to refer to many of
16 the parties by their first names because I don't want to --
17 I can ask you how to pronounce them and you will probably do
18 it for me and I will still get it wrong. But, of course, I
19 don't know, I was just going to do it anyway and try.
20 MR. ALOE: First names are fine.
21 THE COURT: Okay. It is not disrespect or a lack
22 of professionalism, but I think it is going to be easier and
23 everyone will know who I am referring to.
24 Whether Jennifer was on the Board of Directors is a
25 material question of fact. I am not convinced that the law
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1 that was cited requires that there be a replacement, despite
2 what it says in the by-laws as a matter of law. As in, I am
3 not convinced the by-laws can't alter or specify something
4 else. I am not convinced -- and I appreciate everything
5 they said in their affidavits. I can read the E-mail that
6 Jennifer sent, and it does not contain the word "resign."
7 But I also see that in the submissions that Anna did, there
8 is no Jennifer listed on the Board of Directors. I also see
9 that Jennifer, a lawyer, had questions about what her role
10 at Rentability always was. Yet, suddenly, at the end of the
11 day, she has a pretty clear sense of what her rights are on
12 the Board and what they are not, which raises interesting
13 questions. And I look forward to hearing Jennifer, the
14 lawyer, testify in front of me under oath as to her
15 activities as a Board member after she issued that E-mail
16 and during the time that Anna was certifying that she is not
17 on the Board.
18 In light of the fact that I have questions about
19 whether Jennifer was on the Board or not, I have questions
20 galore about whether there was a quorum ever for any of the
21 actions taken by any of the parties here. So, for example,
22 is it Bardack (phonetic) or Bardash (phonetic)?
23 MR. CANNA: Bardack (phonetic) is how I have always
24 pronounced it.
25 THE COURT: Okay. I can manage that one, but for
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1 equality, I will just do everyone.
2 For Jordan's meeting, he was the only one there. I
3 am not convinced that's a quorum.
4 For the purported annual meeting -- All right.
5 Let's put aside that I have serious notice questions in
6 terms of, yes, the by-laws don't specify how an annual
7 meeting is to be called because, presumably, there would be
8 an annual meeting every year. That did not happen. But,
9 certainly, I have questions on whether or not a Board
10 member, potentially, because I don't know if Jennifer is on
11 the Board or not, but -- and if not, whether Anna can call
12 the annual meeting, or even whether the majority can call
13 the annual meeting when -- for special meetings, I have
14 special provisions in terms of who actually can call those
15 meetings. So I am questioning whether this "annual meeting"
16 could have been called. And even if it were properly
17 called, whether there was a quorum there, because if
18 Jennifer is not on the Board, then that meeting suffers from
19 the same infirmity that Jordan's meeting suffers from, and
20 there are just so many other issues here.
21 I mean, putting aside -- Again, there are issues --
22 there is -- To me, there is a potential here, a real
23 potential, that we have a Board consisting of Jordan and
24 Anna. And then I have questions about deadlock. Like,
25 what's going to happen with this non-profit if these two are
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1 on the Board and cannot agree on anything, whatsoever?
2 Are we talking about a situation in this
3 not-for-profit where a receiver has to be appointed?
4 I have questions about the notarization process
5 that this entity -- And to be clear, I am not convinced that
6 any party here is completely on the up and up in terms of
7 what happened with notarizations or in terms of how things
8 went down, like the Starbucks meeting, just as problematic
9 to me -- Well, it is just as problematic to me as the other
10 meeting.
11 So I am right back where I started. This is a
12 complete mess, and I tell this to parties where I see
13 situations like this in regulated entities where I have real
14 concerns. And again, I haven't heard the evidence yet, so I
15 don't know if the concerns will actually pan out. Maybe
16 everything was done great here, even though, again, no
17 annual meetings, in general, and the E-Mails that I have
18 seen raise so many questions on every side, but regulated
19 entity, lawyer-involved, I worry. You know, HPD approval
20 required was hard to get. These parties got it and this is
21 the mess that we are in and, ultimately, whether I would
22 have to appoint a receiver for this not-for-profit.
23 So what I am prepared to do today -- I mean, you
24 can try to -- I will give you a few minutes if you want to
25 convince me that I am missing something, but I really don't
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1 think I am in terms of I don't see this as anyone convincing
2 me, as a matter of law, definitively she resigned without me
3 hearing testimony or that it doesn't matter -- I think it
4 really does matter -- or that these meetings were
5 legitimately were called as a matter of law to convince me
6 that any extraordinary relief altering the status quo is
7 appropriate at this point. But what I will do is I will
8 give you a date in early November where I am going to have a
9 Teams hearing where I can actually hear from the witnesses
10 and, boy, will I have questions for them if you don't cover
11 them, but I do direct testimony through affidavit. So I
12 will give you a deadline to submit those affidavits and then
13 you will each cross-examine the witnesses and I, certainly,
14 will have my questions. And I may want the notary to be a
15 witness here too because, again, this is a not-for-profit
16 with regulations, and I really -- like, the way that it has
17 been operating -- I am concerned. And what I will also give
18 you, of course, is time to oppose the cross motion and time
19 to see if these parties can find a way to clean up this mess
20 without airing it, you know, and see if they can run this
21 not-for-profit in a way that's conducive to the purposes of
22 the not-for-profit and conducive to all of their interests.
23 They worked hard to get the appropriate approvals to do this
24 and, again, I have concerns that if this record gets filed
25 -- and I don't know what it will mean for these parties. I
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1 really don't. So I am happy if -- Is it Mr. Canna?
2 MR. CANNA: Yes, thank you.
3 THE COURT: Mr. Canna, I have just laid everything
4 out, like, based on the papers that I have read. I am happy
5 to hear from you, but I really want you to focus for me on
6 whether you can see these parties. And, you know, I have
7 read everything. I am familiar with the background and the
8 parties' relationships here and what is going on with the
9 other lawsuit, but is this something that they can save or
10 that they want to really save?
11 MR. CANNA: I hear you and I think, you know, the
12 issues you raised are correct. You are spot-on in a lot of
13 them. And while I do think the resignation letter speaks
14 for itself, and it is pretty clear that that's what
15 happened, and I don't think it is worth going into the
16 detail now for you because, you know, you have clearly read
17 everything. I think there are certain dots that could be
18 connected between, you know, the October 6th, 2002 affidavit
19 from Anna submitted to HPD saying that Jennifer wasn't on
20 the Board and the E-mail that now --
21 THE COURT: That was the 2022, October 2022?
22 MR. CANNA: Yeah, where, you know, she submits
23 where they take my client off the chain, put on Mr. Katz,
24 and it is the exact same date as that affidavit she signed
25 and notarized saying Anna wasn't on the Board. And then
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1 here she is on E-mails taking my client off and putting
2 Mr. Katz on and then talking about, oh, this was my
3 involvement at Rentability, as Jennifer says. But that
4 involvement was conspiring with Mr. Katz and Anna to do
5 exactly what they did. So, I mean, I think there are a lot
6 of --
7 THE COURT: Wait, Mr. Canna. Let's not forget
8 about Tina, right, putting Tina on the Board. And she is
9 going to be an interesting witness for me to hear from based
10 on what I have seen, but I want to hear it from her.
11 MR. CANNA: And, Your Honor, I would also like to
12 put on is that Anna says, oh, I put that on, but then
13 whether Mr. Katz rejected it, said, oh, it didn't matter.
14 That's how she explains her affidavit. But that affidavit
15 was signed after my client said he didn't want her on the
16 Board. And my client didn't even find out about that until
17 six months later, when he was investigating her E-Mails and
18 saw that she had submitted that affidavit and had my
19 client's affidavit forged to HPD. Then he had to contact
20 that person and say you are not on the Board. She resigned
21 by letter, just to be safe, and he contacted the notary.
22 And then they brought back up -- They resurrected the plan
23 of having Jennifer be on the Board, so that if anything
24 happened where my client took action to remove Anna for her
25 improper actions, they could say, oh, no, Jennifer was on
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1 the Board the whole time.
2 And one last thing I would like to point out is for
3 that year that Jennifer was, supposedly, on the Board, there
4 are multiple submissions to HPD by Anna and not a single one
5 of them stated that Jennifer was on the Board.
6 THE COURT: Okay. So, Mr. Canna, where does that
7 get your client, though?
8 Let's assume that I end up agreeing, because,
9 again, I read the affidavits and they are very careful to
10 tell me that the word "resignation" isn't in the E-mail, and
11 I know that and I don't know that that matters. And of
12 course, I am curious to hear all the work she did with the
13 Board after that E-mail. I will hear it from her, because I
14 see the E-Mails. They mean nothing to me, those particular
15 E-Mails, in terms of showing me that she did work for the
16 Board. But I will hear -- but where does that get your
17 client in terms of if Jennifer is out of the picture --
18 MR. CANNA: Right.
19 THE COURT: -- it doesn't make his meeting kosher.
20 It doesn't make her meeting kosher. It leaves us with a
21 two-person Board with people who haven't been working very
22 well together.
23 MR. CANNA: Well, if I could just address his
24 September 5th meeting, it was properly noticed. He had a
25 right to call it pursuant to 710 of the New York
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1 Non-for-Profit Law. A special meeting could be held at
2 anyplace within or without the State. He properly noticed
3 it. There was nothing improper about that meeting.
4 THE COURT: What's a quorum?
5 MR. CANNA: Because pursuant to the by-laws, when
6 removing a director, the quorum is the majority of people
7 who are at that meeting. That is a proper quorum, and that
8 complies with the Non-for-Profit Corporation Law, because
9 you could have a quorum as small as, I believe, 10 percent
10 of the Board members. So it was a proper quorum. It was
11 properly noticed. It was properly called. Everything was
12 proper at that meeting. She refused to show up because it
13 was to remove her. And that's why the whole plan was
14 hatched, to bring the sham annual meeting before he removed
15 her. She never had the intention of showing up at that
16 meeting.
17 So, you know, there is case law that you could have
18 a meeting at your house if you want. There is nothing wrong
19 with Starbucks. And that's what wasn't briefed on this
20 petition, because I didn't think it was properly before the
21 Court in a petition under 618, because under 618, it is to
22 invalidate a election. So I did not bring that as part of
23 it. And while at 9:00 at night I get a cross motion that
24 they are trying to seek a declaratory judgment against
25 Rentability, who is not even the Petitioner. So I think
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1 that determination is not even before this Court, because
2 that would have to be brought by an application by Anna for
3 a declaratory judgment against Rentability, who, to raise
4 again, Ms. Johnson I don't think properly represents them
5 because she was retained by the secretary, who has no
6 authority to do that, prior to the September 1st meeting.
7 But putting that aside, Rentability should be
8 defending that action, and there is no counsel for
9 Rentability in this action. It is a nominal defendant.
10 THE COURT: Okay.
11 Again, the big problem -- One moment. The big
12 overarching problem to me, too, is I have no idea
13 officially -- Again, I may have suspicion based on
14 everything that I have read in terms how this comes out
15 factually or -- I have questions, I really do. And without
16 hearing evidence, I just cannot resolve them definitively.
17 And I don't know, like, what a majority is anymore, what the
18 quorum would be. But I certainly think and have concerns
19 that there is a problem here, and I also have concerns about
20 whether or not I would ultimately appoint a receiver in this
21 context. So that is certainly something that should be on
22 everybody's mind.
23 All right. Let me hear from you, Mr. Aloe, and
24 then I am happy to hear from you, Ms. Johnson, too, even
25 though, I know there are questions about whether you were
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1 properly retained.
2 And I understand -- I mean, I can't emphasize
3 enough what a mess I think this is.
4 Go ahead, Mr. Aloe.
5 MR. ALOE: Yes.
6 So, Your Honor, I mean the problem here is
7 Mr. Bardach has come and paints a picture of Rentability as
8 some independent company that he created, sort of,
9 theoretically separate and apart from City Five. That's
10 clearly not the facts, first of all. The facts are that
11 Bardach and Katz were 50/50 members in City Five. This was
12 created with funds from City Five to provide services.
13 There was a lawsuit last year, which I am the one
14 person in it.
15 THE COURT: Why do I care about this, Mr. Aloe?
16 Mr. Katz is definitively --
17 MR. ALOE: I think you do.
18 THE COURT: One moment. You are not letting me
19 finish my sentence.
20 Mr. Katz is not on the Board, that I know for sure.
21 There are certain things I know for sure. That is one of
22 them. So he doesn't get a vote, officially certainly, he
23 doesn't get a vote and he is not a issue. So let's focus on
24 the actual issues here, because the relationship between
25 City Five -- I don't know that that means anything to me
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1 here. What matters is who is on the Board, and that's,
2 pretty much -- and where is this going? Meaning, do I have
3 a situation where I have a two-person Board and I need to
4 appoint a receiver so that -- and neither of the factions
5 will be calling the shots here at the end of the day? Maybe
6 that's best for the non-profit.
7 MR. ALOE: So there was a three-person Board.
8 There was an E-mail from Jennifer. Jennifer did not use the
9 word "resign." In fact, Jennifer asked for the by-laws and
10 the certificate of incorporation so she could determine the
11 correct procedure and she was asking to be replaced.
12 I do agree that in the, sort of, messy way that
13 these guys operated -- because you see no Board meetings
14 before. It is not even clear the Board meetings whether
15 people got appointed, but there was discussion about, okay,
16 Tina is going to be on the Board. Then Jordan says no, he's
17 not. Well, okay. We have to decide on something. And
18 Jordan is sitting out in the Hamptons, because that's where
19 he went, refused to do it, and it operated. And Jennifer,
20 who was really doing -- you know, was -- you know, would be
21 doing the work, but had to get these documents signed --
22 THE COURT: I am assuming you are talking about
23 Anna.
24 MR. ALOE: Yes, I am talking about Anna.
25 THE COURT: Okay. You said Jennifer.
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1 MR. ALOE: Yeah, I'm sorry. I am talking about
2 Anna.
3 And, I mean, if you look at this record and some of
4 the ways that Jordan -- and, quite frankly, there is --
5 Obviously, there is something more than the normal situation
6 because the relationship to him. But you see some of these
7 things and your hair stands a bit. I agree with you that
8 the way they went about notarizations was wrong, but it was
9 being directed by Jordan. When she said I don't want it --
10 I mean, the thing is she is telling him you've got to show
11 leadership. This is something I am telling you to do. Obey
12 me. So this is somebody who is commanding her.
13 So yes, there was a belief -- and I think it was a
14 clumsy belief -- Okay, we will informally put Tina on. She
15 wasn't really on. I think we all agree today that Tina
16 wasn't on, but Jennifer was still on the Board, and that's
17 important because the part of the thing you are struggling
18 with, Judge, is if Jennifer is not on the Board, then it is
19 just a two-person Board and they are at a horrible deadlock.
20 I don't believe they are. I think that's a key -- You have
21 identified that as a key threshold issue. I think that is a
22 key threshold issue. And I don't -- I am not surprised that
23 you are saying I need a hearing.
24 You know, we think the record is clear, including,
25 you know, what's important is what was Jennifer's actions?
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1 What did Jennifer say?
2 What did Jennifer understand that she was doing?
3 And so that's important.
4 THE COURT: I don't know if I care what she -- One
5 moment.
6 I don't know that I care that she understood she
7 was doing. What I care about is what did she do for the
8 Board? Because I didn't see evidence in the E-mail that she
9 really participated on the Board after that date. So I am
10 very curious to see what she actually did to participate on
11 the Board, especially in connection with Jordan.
12 You know, E-Mails between Katz and Anna aren't so
13 helpful to me. But I want to see how did she interact with
14 Jordan on the Board after she submitted that E-mail?
15 And, of course, I also want to see how others
16 behaved in terms of -- I see certifications by Anna, and I
17 am pretty sure that they -- Well, I think they are by Anna.
18 They are submitted, and probably in official capacities in
19 terms of requirements to disclose who is on the Board. We
20 know that Tina wasn't on, despite that assertion, but
21 Jennifer is not named there, and I bet you she was named
22 before on those forms. So interestingly, Anna took her off.
23 So, of course, I am very curious about that.
24 And look, Jennifer will come in. She is a lawyer.
25 She is an officer of the Court with significant, you know,
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1 responsibilities. Well, everybody has a responsibility to
2 tell the truth. But, you know, I am very interested to hear
3 what this licensed attorney tells me about her role in
4 Rentability altogether. So, certainly, I look forward to
5 hearing from her.
6 MR. ALOE: Right.
7 And the one thing I would say -- I think Your
8 Honor's comments and observations are perceptive. You know,
9 there is a distinction between a Board member and some Board
10 members don't do the work of the corporation. Board members
11 are responsible to supervise and be in charge. So there is
12 a difference between what -- whether or not Jennifer is
13 actually doing work and Jennifer was still on the Board
14 until she -- I mean, there is a distinction.
15 THE COURT: Sure, yes. None of this surprises me
16 in terms of raising the issues, but it certainly is
17 interesting to me that Anna held the Board out as
18 not-inclusive of Jennifer. So, you know, we will see what
19 the significance of that is at the end of the day, too.
20 And look, this wasn't done so formally it sounds
21 like in all of the time that it existed, and it is a shame
22 now that we are where we are, which is a big mess that is
23 going to be aired on a record for this non-for-profit and,
24 you know, again, could have ramifications for this entity
25 altogether.
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1 So, all of you, be mindful of that because I think
2 this could be much more serious than, perhaps, these parties
3 appreciate. And I don't think there is an easy solution as
4 in Jordan runs everything or, you know, or as of now, I am
5 certainly not convinced that there were two, Anna and
6 Jennifer, who had -- you know, were able to have the valid
7 vote. I have to be convinced. I am not right now.
8 MR. CANNA: Your Honor.
9 THE COURT: Yes. And then I promised Ms. Johnson
10 she can speak.
11 MR. CANNA: Yes. I want to respond to Mr. Aloe and
12 then I am happy to hear from Ms. Johnson.
13 On just a couple of points. One, the allegation
14 that my client committed a criminal act I think is
15 inappropriate, and it is not even supported by the
16 documents. I just want to point it out, that when he says
17 that Jordan was directing -- I don't even understand the
18 allegation -- to forge his own name, which is confusing to
19 me at one point.
20 And also, if you read the actual E-Mails that they
21 cite to, Jordan says, "I asked if James is fine with doing
22 notarization electronically due to the coronavirus." This
23 was in 2020, when the notarization laws were actually
24 revised to allow electronic notarization. So I'm not sure
25 that proves it.
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1 Now, when you submit a document of someone else's
2 signature to a notary and say they asked to do it and they
3 did not ask to do it, like Anna did of my client's
4 signature, that is forgery. So I just want to point that
5 out, because I think it is inappropriate for there to be
6 filed documents accusing my client of a crime, and that has
7 happened.
8 THE COURT: They file documents all the time.
9 Filed documents don't make anything true. What makes them
10 true is when I have to make findings of fact, which is
11 coming, unless these parties can find a way to work it out
12 and really get this not-for-profit entity on track in a
13 meaningful, organized way. I don't know. I don't know if
14 they are going to be able to do that. And it may be a
15 situation where a receiver has to come in and, quite
16 frankly, I don't know what that means in terms of regulatory
17 requirements. I haven't explored it all, but what I am
18 saying is that I am not impressed at all in terms of how
19 things have been run. That is why everybody is in the mess
20 that they are in. And if there is a potential for them to
21 clean it up on their own, fantastic, instead of me getting
22 into, well, what has been properly notarized? What hasn't?
23 What has legal effect? What doesn't? How are people on the
24 Board really doing anything? Do they understand their roles
25 in this not-for-profit or have they just been there to be
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1 people on the Board? All concerns that I have, and at the
2 appropriate time, perfectly fine with making those factual
3 determinations.
4 Okay. Let me hear from you, Ms. Johnson.
5 Good morning.
6 MS. JOHNSON: Good morning, Judge.
7 Good morning, counsel.
8 So I am the new kid on the block, Your Honor. I
9 came in August, when I got a call, because I do represent
10 not-for-profits. And because I represent not-for-profits --
11 As a matter of fact, we just had a big election meeting last
12 night for one of my other HDFCs, which is a not-for-profit.
13 So, like you, I did see some problems played a
14 little messy, things played a little fast and loose.
15 I do want to establish that you're right. Once
16 there is a determination as to whether or not Jennifer is on
17 the Board, really, that's what this about. If she is deemed
18 to be on the Board, then the election is fine. If she is
19 deemed not to be on the Board, then we have a real mess, as
20 you stated.
21 One of the last things that -- Because it is a
22 not-for-profit, it is not a lot of money. They don't
23 generate a lot of money. It is not-for-profit.
24 Also, if we look at this systematically and you
25 find that a receiver is appointed, basically, these
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1 entities, at least Rentability, is over. You know, when
2 there is always these judicial hearings, often times, a
3 judge, like you, is frustrated. Okay, let's start from the
4 beginning. Let's call a new election. Because sometimes
5 the Court is saying, well, it is such a mess, let's just
6 start from the beginning and call a new election.
7 I just would ask that, Your Honor, that that would
8 be the very, very, very, very last thing that could happen,
9 as to a receiver, because this is affordable housing. There
10 are so many tenants on this lottery system that are
11 depending upon this process to go through and for these
12 folks to continue to operate, albeit, operate a lot better
13 than you are doing, okay, but you have so many -- Affordable
14 housing is a problem in the City of New York. So all of
15 these tenants who have gone to this lottery, who have put in
16 their applications, they are all standing by right now.
17 What are we going to do? So I would ask for that to be the
18 very last thing that the Court would do.
19 I also would like to stress that I haven't seen a
20 not-for-profit where a member of the Board is also
21 significantly on in another agency -- You know, it is a bit
22 of a conflict there, and I have told Rentability this. That
23 looks to me as an inherent conflict. They should be
24 separate. Deal with each other, but the Board members
25 should be separate to preserve the integrity of a
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1 not-for-profit.
2 Jennifer -- I looked at -- We have had removal, and
3 in terms of removal of Anna as a Board member, I looked at
4 that notice that was, supposedly, for a meeting in the
5 Hamptons following a holiday weekend is in no way a
6 reasonable assembly. That, in and of itself, would fall in
7 terms of that meeting.
8 THE COURT: Okay. But, Ms. Johnson, what would
9 happen -- Again, what would happen if I said new meeting?
10 Who is voting at this meeting?
11 MS. JOHNSON: Well, before you say new meeting, you
12 would have to determine if Jennifer is on or off?
13 THE COURT: Understood.
14 Let's assume for the moment that Jennifer is off,
15 what happens if I say new meeting?
16 MS. JOHNSON: At that new meeting, then there would
17 have to be an appointment of a new director. They would
18 have to appoint -- That's the first order of business.
19 THE COURT: Who gets to vote?
20 MS. JOHNSON: Well, they would both get to vote.
21 Hopefully, they would come to an agreement as to who it will
22 be, which I am hoping that both sides would understand that
23 this lawsuit is seriously jeopardizing -- City Five is
24 seriously jeopardizing Rentability. But you are right.
25 They would both get to vote. And this is why on
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1 not-for-profits, we require a three-member Board. It is
2 absolutely required. And in the by-laws, it is very proper
3 that a resignation of a director has to be in writing.
4 Their by-laws require it, and the Court -- the Court laws
5 and in the case law, it states Jennifer would have to say "I
6 hereby resign of this Board."
7 THE COURT: Is there case law, Ms. Johnson, because
8 I just didn't see it in the papers in front of me. Is there
9 case law that says that the resignation has to contain the
10 word "resignation"?
11 MS. JOHNSON: No, but in their by-laws, and what
12 the case law says is that the Court must follow the strict
13 rules that are contained in the by-laws. If the by-laws
Preview
FILED: NEW YORK COUNTY CLERK 10/30/2023 04:02 PM INDEX NO. 159110/2023 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 10/30/2023 1 1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: CIVIL TERM: PART 54 2 --------------------------------------------x JORDAN BARDACH, INDEX NO.: 3 159110/2023 Plaintiff(s) 4 - against - 5 ANNA MARTYNOVA, JENNIFER MILOSAVLJEVIC, 6 YOEL HERSHKOWITCH, ARON WOLOCOWITZ, RENTABILITY, INC. (Nominal Respondent) 7 Defendant(s). 8 --------------------------------------------x Microsoft Teams 9 60 Centre Street 10 New York, New York 10007 October 6, 2023 11 B E F O R E: 12 HONORABLE JENNIFER G. SCHECTER, J.S.C. 13 A P P E A R A N C E S: 14 LIBERMAN CANNA, LLP Attorneys for Plaintiff 15 110 East 59th Street - 22nd Floor New York, New York 10022 16 BY: BRETT G. CANNA, ESQ. 17 KUDMAN TRACHTEN ALOE & POSNER, LLP Attorneys for Defendants 18 488 Madison Avenue - 23rd Floor New York, New York 10022 19 BY: PAUL ALOE, ESQ. JACOB S. REICHMAN, ESQ. 20 ANGELYN JOHNSON & ASSOCIATES, LLC 21 Attorneys for Nominal Defendant 26 Court Street - Suite 2610 22 Brooklyn, NY 11201 BY: ANGELYN D. JOHNSON, ESQ. 23 24 Kitty S. Acosta Senior Court Reporter 25 1 of 44 FILED: NEW YORK COUNTY CLERK 10/30/2023 04:02 PM INDEX NO. 159110/2023 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 10/30/2023 Proceedings 2 1 THE COURT: Good morning, everyone. 2 Boy, what a mess we have here. 3 So let me start off by saying that I don't see 4 today as anything monumental happening and I just want to 5 confirm, Kitty, that you are with us, correct? 6 COURT REPORTER: Yes, Judge, I am. 7 THE COURT: Okay, wonderful. 8 I don't see anything earth-shattering happening 9 today. I have problems with the situation galore. I will 10 absolutely give the Petitioner a chance to respond to the 11 cross motion. And I absolutely see this as going to a 12 hearing because, quite frankly, I see major issues of fact 13 here that cannot be resolved without credibility assessments 14 that are material. I am not convinced at this point one way 15 or the other whether -- And I am going to refer to many of 16 the parties by their first names because I don't want to -- 17 I can ask you how to pronounce them and you will probably do 18 it for me and I will still get it wrong. But, of course, I 19 don't know, I was just going to do it anyway and try. 20 MR. ALOE: First names are fine. 21 THE COURT: Okay. It is not disrespect or a lack 22 of professionalism, but I think it is going to be easier and 23 everyone will know who I am referring to. 24 Whether Jennifer was on the Board of Directors is a 25 material question of fact. I am not convinced that the law 2 of 44 FILED: NEW YORK COUNTY CLERK 10/30/2023 04:02 PM INDEX NO. 159110/2023 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 10/30/2023 Proceedings 3 1 that was cited requires that there be a replacement, despite 2 what it says in the by-laws as a matter of law. As in, I am 3 not convinced the by-laws can't alter or specify something 4 else. I am not convinced -- and I appreciate everything 5 they said in their affidavits. I can read the E-mail that 6 Jennifer sent, and it does not contain the word "resign." 7 But I also see that in the submissions that Anna did, there 8 is no Jennifer listed on the Board of Directors. I also see 9 that Jennifer, a lawyer, had questions about what her role 10 at Rentability always was. Yet, suddenly, at the end of the 11 day, she has a pretty clear sense of what her rights are on 12 the Board and what they are not, which raises interesting 13 questions. And I look forward to hearing Jennifer, the 14 lawyer, testify in front of me under oath as to her 15 activities as a Board member after she issued that E-mail 16 and during the time that Anna was certifying that she is not 17 on the Board. 18 In light of the fact that I have questions about 19 whether Jennifer was on the Board or not, I have questions 20 galore about whether there was a quorum ever for any of the 21 actions taken by any of the parties here. So, for example, 22 is it Bardack (phonetic) or Bardash (phonetic)? 23 MR. CANNA: Bardack (phonetic) is how I have always 24 pronounced it. 25 THE COURT: Okay. I can manage that one, but for 3 of 44 FILED: NEW YORK COUNTY CLERK 10/30/2023 04:02 PM INDEX NO. 159110/2023 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 10/30/2023 Proceedings 4 1 equality, I will just do everyone. 2 For Jordan's meeting, he was the only one there. I 3 am not convinced that's a quorum. 4 For the purported annual meeting -- All right. 5 Let's put aside that I have serious notice questions in 6 terms of, yes, the by-laws don't specify how an annual 7 meeting is to be called because, presumably, there would be 8 an annual meeting every year. That did not happen. But, 9 certainly, I have questions on whether or not a Board 10 member, potentially, because I don't know if Jennifer is on 11 the Board or not, but -- and if not, whether Anna can call 12 the annual meeting, or even whether the majority can call 13 the annual meeting when -- for special meetings, I have 14 special provisions in terms of who actually can call those 15 meetings. So I am questioning whether this "annual meeting" 16 could have been called. And even if it were properly 17 called, whether there was a quorum there, because if 18 Jennifer is not on the Board, then that meeting suffers from 19 the same infirmity that Jordan's meeting suffers from, and 20 there are just so many other issues here. 21 I mean, putting aside -- Again, there are issues -- 22 there is -- To me, there is a potential here, a real 23 potential, that we have a Board consisting of Jordan and 24 Anna. And then I have questions about deadlock. Like, 25 what's going to happen with this non-profit if these two are 4 of 44 FILED: NEW YORK COUNTY CLERK 10/30/2023 04:02 PM INDEX NO. 159110/2023 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 10/30/2023 Proceedings 5 1 on the Board and cannot agree on anything, whatsoever? 2 Are we talking about a situation in this 3 not-for-profit where a receiver has to be appointed? 4 I have questions about the notarization process 5 that this entity -- And to be clear, I am not convinced that 6 any party here is completely on the up and up in terms of 7 what happened with notarizations or in terms of how things 8 went down, like the Starbucks meeting, just as problematic 9 to me -- Well, it is just as problematic to me as the other 10 meeting. 11 So I am right back where I started. This is a 12 complete mess, and I tell this to parties where I see 13 situations like this in regulated entities where I have real 14 concerns. And again, I haven't heard the evidence yet, so I 15 don't know if the concerns will actually pan out. Maybe 16 everything was done great here, even though, again, no 17 annual meetings, in general, and the E-Mails that I have 18 seen raise so many questions on every side, but regulated 19 entity, lawyer-involved, I worry. You know, HPD approval 20 required was hard to get. These parties got it and this is 21 the mess that we are in and, ultimately, whether I would 22 have to appoint a receiver for this not-for-profit. 23 So what I am prepared to do today -- I mean, you 24 can try to -- I will give you a few minutes if you want to 25 convince me that I am missing something, but I really don't 5 of 44 FILED: NEW YORK COUNTY CLERK 10/30/2023 04:02 PM INDEX NO. 159110/2023 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 10/30/2023 Proceedings 6 1 think I am in terms of I don't see this as anyone convincing 2 me, as a matter of law, definitively she resigned without me 3 hearing testimony or that it doesn't matter -- I think it 4 really does matter -- or that these meetings were 5 legitimately were called as a matter of law to convince me 6 that any extraordinary relief altering the status quo is 7 appropriate at this point. But what I will do is I will 8 give you a date in early November where I am going to have a 9 Teams hearing where I can actually hear from the witnesses 10 and, boy, will I have questions for them if you don't cover 11 them, but I do direct testimony through affidavit. So I 12 will give you a deadline to submit those affidavits and then 13 you will each cross-examine the witnesses and I, certainly, 14 will have my questions. And I may want the notary to be a 15 witness here too because, again, this is a not-for-profit 16 with regulations, and I really -- like, the way that it has 17 been operating -- I am concerned. And what I will also give 18 you, of course, is time to oppose the cross motion and time 19 to see if these parties can find a way to clean up this mess 20 without airing it, you know, and see if they can run this 21 not-for-profit in a way that's conducive to the purposes of 22 the not-for-profit and conducive to all of their interests. 23 They worked hard to get the appropriate approvals to do this 24 and, again, I have concerns that if this record gets filed 25 -- and I don't know what it will mean for these parties. I 6 of 44 FILED: NEW YORK COUNTY CLERK 10/30/2023 04:02 PM INDEX NO. 159110/2023 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 10/30/2023 Proceedings 7 1 really don't. So I am happy if -- Is it Mr. Canna? 2 MR. CANNA: Yes, thank you. 3 THE COURT: Mr. Canna, I have just laid everything 4 out, like, based on the papers that I have read. I am happy 5 to hear from you, but I really want you to focus for me on 6 whether you can see these parties. And, you know, I have 7 read everything. I am familiar with the background and the 8 parties' relationships here and what is going on with the 9 other lawsuit, but is this something that they can save or 10 that they want to really save? 11 MR. CANNA: I hear you and I think, you know, the 12 issues you raised are correct. You are spot-on in a lot of 13 them. And while I do think the resignation letter speaks 14 for itself, and it is pretty clear that that's what 15 happened, and I don't think it is worth going into the 16 detail now for you because, you know, you have clearly read 17 everything. I think there are certain dots that could be 18 connected between, you know, the October 6th, 2002 affidavit 19 from Anna submitted to HPD saying that Jennifer wasn't on 20 the Board and the E-mail that now -- 21 THE COURT: That was the 2022, October 2022? 22 MR. CANNA: Yeah, where, you know, she submits 23 where they take my client off the chain, put on Mr. Katz, 24 and it is the exact same date as that affidavit she signed 25 and notarized saying Anna wasn't on the Board. And then 7 of 44 FILED: NEW YORK COUNTY CLERK 10/30/2023 04:02 PM INDEX NO. 159110/2023 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 10/30/2023 Proceedings 8 1 here she is on E-mails taking my client off and putting 2 Mr. Katz on and then talking about, oh, this was my 3 involvement at Rentability, as Jennifer says. But that 4 involvement was conspiring with Mr. Katz and Anna to do 5 exactly what they did. So, I mean, I think there are a lot 6 of -- 7 THE COURT: Wait, Mr. Canna. Let's not forget 8 about Tina, right, putting Tina on the Board. And she is 9 going to be an interesting witness for me to hear from based 10 on what I have seen, but I want to hear it from her. 11 MR. CANNA: And, Your Honor, I would also like to 12 put on is that Anna says, oh, I put that on, but then 13 whether Mr. Katz rejected it, said, oh, it didn't matter. 14 That's how she explains her affidavit. But that affidavit 15 was signed after my client said he didn't want her on the 16 Board. And my client didn't even find out about that until 17 six months later, when he was investigating her E-Mails and 18 saw that she had submitted that affidavit and had my 19 client's affidavit forged to HPD. Then he had to contact 20 that person and say you are not on the Board. She resigned 21 by letter, just to be safe, and he contacted the notary. 22 And then they brought back up -- They resurrected the plan 23 of having Jennifer be on the Board, so that if anything 24 happened where my client took action to remove Anna for her 25 improper actions, they could say, oh, no, Jennifer was on 8 of 44 FILED: NEW YORK COUNTY CLERK 10/30/2023 04:02 PM INDEX NO. 159110/2023 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 10/30/2023 Proceedings 9 1 the Board the whole time. 2 And one last thing I would like to point out is for 3 that year that Jennifer was, supposedly, on the Board, there 4 are multiple submissions to HPD by Anna and not a single one 5 of them stated that Jennifer was on the Board. 6 THE COURT: Okay. So, Mr. Canna, where does that 7 get your client, though? 8 Let's assume that I end up agreeing, because, 9 again, I read the affidavits and they are very careful to 10 tell me that the word "resignation" isn't in the E-mail, and 11 I know that and I don't know that that matters. And of 12 course, I am curious to hear all the work she did with the 13 Board after that E-mail. I will hear it from her, because I 14 see the E-Mails. They mean nothing to me, those particular 15 E-Mails, in terms of showing me that she did work for the 16 Board. But I will hear -- but where does that get your 17 client in terms of if Jennifer is out of the picture -- 18 MR. CANNA: Right. 19 THE COURT: -- it doesn't make his meeting kosher. 20 It doesn't make her meeting kosher. It leaves us with a 21 two-person Board with people who haven't been working very 22 well together. 23 MR. CANNA: Well, if I could just address his 24 September 5th meeting, it was properly noticed. He had a 25 right to call it pursuant to 710 of the New York 9 of 44 FILED: NEW YORK COUNTY CLERK 10/30/2023 04:02 PM INDEX NO. 159110/2023 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 10/30/2023 Proceedings 10 1 Non-for-Profit Law. A special meeting could be held at 2 anyplace within or without the State. He properly noticed 3 it. There was nothing improper about that meeting. 4 THE COURT: What's a quorum? 5 MR. CANNA: Because pursuant to the by-laws, when 6 removing a director, the quorum is the majority of people 7 who are at that meeting. That is a proper quorum, and that 8 complies with the Non-for-Profit Corporation Law, because 9 you could have a quorum as small as, I believe, 10 percent 10 of the Board members. So it was a proper quorum. It was 11 properly noticed. It was properly called. Everything was 12 proper at that meeting. She refused to show up because it 13 was to remove her. And that's why the whole plan was 14 hatched, to bring the sham annual meeting before he removed 15 her. She never had the intention of showing up at that 16 meeting. 17 So, you know, there is case law that you could have 18 a meeting at your house if you want. There is nothing wrong 19 with Starbucks. And that's what wasn't briefed on this 20 petition, because I didn't think it was properly before the 21 Court in a petition under 618, because under 618, it is to 22 invalidate a election. So I did not bring that as part of 23 it. And while at 9:00 at night I get a cross motion that 24 they are trying to seek a declaratory judgment against 25 Rentability, who is not even the Petitioner. So I think 10 of 44 FILED: NEW YORK COUNTY CLERK 10/30/2023 04:02 PM INDEX NO. 159110/2023 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 10/30/2023 Proceedings 11 1 that determination is not even before this Court, because 2 that would have to be brought by an application by Anna for 3 a declaratory judgment against Rentability, who, to raise 4 again, Ms. Johnson I don't think properly represents them 5 because she was retained by the secretary, who has no 6 authority to do that, prior to the September 1st meeting. 7 But putting that aside, Rentability should be 8 defending that action, and there is no counsel for 9 Rentability in this action. It is a nominal defendant. 10 THE COURT: Okay. 11 Again, the big problem -- One moment. The big 12 overarching problem to me, too, is I have no idea 13 officially -- Again, I may have suspicion based on 14 everything that I have read in terms how this comes out 15 factually or -- I have questions, I really do. And without 16 hearing evidence, I just cannot resolve them definitively. 17 And I don't know, like, what a majority is anymore, what the 18 quorum would be. But I certainly think and have concerns 19 that there is a problem here, and I also have concerns about 20 whether or not I would ultimately appoint a receiver in this 21 context. So that is certainly something that should be on 22 everybody's mind. 23 All right. Let me hear from you, Mr. Aloe, and 24 then I am happy to hear from you, Ms. Johnson, too, even 25 though, I know there are questions about whether you were 11 of 44 FILED: NEW YORK COUNTY CLERK 10/30/2023 04:02 PM INDEX NO. 159110/2023 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 10/30/2023 Proceedings 12 1 properly retained. 2 And I understand -- I mean, I can't emphasize 3 enough what a mess I think this is. 4 Go ahead, Mr. Aloe. 5 MR. ALOE: Yes. 6 So, Your Honor, I mean the problem here is 7 Mr. Bardach has come and paints a picture of Rentability as 8 some independent company that he created, sort of, 9 theoretically separate and apart from City Five. That's 10 clearly not the facts, first of all. The facts are that 11 Bardach and Katz were 50/50 members in City Five. This was 12 created with funds from City Five to provide services. 13 There was a lawsuit last year, which I am the one 14 person in it. 15 THE COURT: Why do I care about this, Mr. Aloe? 16 Mr. Katz is definitively -- 17 MR. ALOE: I think you do. 18 THE COURT: One moment. You are not letting me 19 finish my sentence. 20 Mr. Katz is not on the Board, that I know for sure. 21 There are certain things I know for sure. That is one of 22 them. So he doesn't get a vote, officially certainly, he 23 doesn't get a vote and he is not a issue. So let's focus on 24 the actual issues here, because the relationship between 25 City Five -- I don't know that that means anything to me 12 of 44 FILED: NEW YORK COUNTY CLERK 10/30/2023 04:02 PM INDEX NO. 159110/2023 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 10/30/2023 Proceedings 13 1 here. What matters is who is on the Board, and that's, 2 pretty much -- and where is this going? Meaning, do I have 3 a situation where I have a two-person Board and I need to 4 appoint a receiver so that -- and neither of the factions 5 will be calling the shots here at the end of the day? Maybe 6 that's best for the non-profit. 7 MR. ALOE: So there was a three-person Board. 8 There was an E-mail from Jennifer. Jennifer did not use the 9 word "resign." In fact, Jennifer asked for the by-laws and 10 the certificate of incorporation so she could determine the 11 correct procedure and she was asking to be replaced. 12 I do agree that in the, sort of, messy way that 13 these guys operated -- because you see no Board meetings 14 before. It is not even clear the Board meetings whether 15 people got appointed, but there was discussion about, okay, 16 Tina is going to be on the Board. Then Jordan says no, he's 17 not. Well, okay. We have to decide on something. And 18 Jordan is sitting out in the Hamptons, because that's where 19 he went, refused to do it, and it operated. And Jennifer, 20 who was really doing -- you know, was -- you know, would be 21 doing the work, but had to get these documents signed -- 22 THE COURT: I am assuming you are talking about 23 Anna. 24 MR. ALOE: Yes, I am talking about Anna. 25 THE COURT: Okay. You said Jennifer. 13 of 44 FILED: NEW YORK COUNTY CLERK 10/30/2023 04:02 PM INDEX NO. 159110/2023 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 10/30/2023 Proceedings 14 1 MR. ALOE: Yeah, I'm sorry. I am talking about 2 Anna. 3 And, I mean, if you look at this record and some of 4 the ways that Jordan -- and, quite frankly, there is -- 5 Obviously, there is something more than the normal situation 6 because the relationship to him. But you see some of these 7 things and your hair stands a bit. I agree with you that 8 the way they went about notarizations was wrong, but it was 9 being directed by Jordan. When she said I don't want it -- 10 I mean, the thing is she is telling him you've got to show 11 leadership. This is something I am telling you to do. Obey 12 me. So this is somebody who is commanding her. 13 So yes, there was a belief -- and I think it was a 14 clumsy belief -- Okay, we will informally put Tina on. She 15 wasn't really on. I think we all agree today that Tina 16 wasn't on, but Jennifer was still on the Board, and that's 17 important because the part of the thing you are struggling 18 with, Judge, is if Jennifer is not on the Board, then it is 19 just a two-person Board and they are at a horrible deadlock. 20 I don't believe they are. I think that's a key -- You have 21 identified that as a key threshold issue. I think that is a 22 key threshold issue. And I don't -- I am not surprised that 23 you are saying I need a hearing. 24 You know, we think the record is clear, including, 25 you know, what's important is what was Jennifer's actions? 14 of 44 FILED: NEW YORK COUNTY CLERK 10/30/2023 04:02 PM INDEX NO. 159110/2023 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 10/30/2023 Proceedings 15 1 What did Jennifer say? 2 What did Jennifer understand that she was doing? 3 And so that's important. 4 THE COURT: I don't know if I care what she -- One 5 moment. 6 I don't know that I care that she understood she 7 was doing. What I care about is what did she do for the 8 Board? Because I didn't see evidence in the E-mail that she 9 really participated on the Board after that date. So I am 10 very curious to see what she actually did to participate on 11 the Board, especially in connection with Jordan. 12 You know, E-Mails between Katz and Anna aren't so 13 helpful to me. But I want to see how did she interact with 14 Jordan on the Board after she submitted that E-mail? 15 And, of course, I also want to see how others 16 behaved in terms of -- I see certifications by Anna, and I 17 am pretty sure that they -- Well, I think they are by Anna. 18 They are submitted, and probably in official capacities in 19 terms of requirements to disclose who is on the Board. We 20 know that Tina wasn't on, despite that assertion, but 21 Jennifer is not named there, and I bet you she was named 22 before on those forms. So interestingly, Anna took her off. 23 So, of course, I am very curious about that. 24 And look, Jennifer will come in. She is a lawyer. 25 She is an officer of the Court with significant, you know, 15 of 44 FILED: NEW YORK COUNTY CLERK 10/30/2023 04:02 PM INDEX NO. 159110/2023 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 10/30/2023 Proceedings 16 1 responsibilities. Well, everybody has a responsibility to 2 tell the truth. But, you know, I am very interested to hear 3 what this licensed attorney tells me about her role in 4 Rentability altogether. So, certainly, I look forward to 5 hearing from her. 6 MR. ALOE: Right. 7 And the one thing I would say -- I think Your 8 Honor's comments and observations are perceptive. You know, 9 there is a distinction between a Board member and some Board 10 members don't do the work of the corporation. Board members 11 are responsible to supervise and be in charge. So there is 12 a difference between what -- whether or not Jennifer is 13 actually doing work and Jennifer was still on the Board 14 until she -- I mean, there is a distinction. 15 THE COURT: Sure, yes. None of this surprises me 16 in terms of raising the issues, but it certainly is 17 interesting to me that Anna held the Board out as 18 not-inclusive of Jennifer. So, you know, we will see what 19 the significance of that is at the end of the day, too. 20 And look, this wasn't done so formally it sounds 21 like in all of the time that it existed, and it is a shame 22 now that we are where we are, which is a big mess that is 23 going to be aired on a record for this non-for-profit and, 24 you know, again, could have ramifications for this entity 25 altogether. 16 of 44 FILED: NEW YORK COUNTY CLERK 10/30/2023 04:02 PM INDEX NO. 159110/2023 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 10/30/2023 Proceedings 17 1 So, all of you, be mindful of that because I think 2 this could be much more serious than, perhaps, these parties 3 appreciate. And I don't think there is an easy solution as 4 in Jordan runs everything or, you know, or as of now, I am 5 certainly not convinced that there were two, Anna and 6 Jennifer, who had -- you know, were able to have the valid 7 vote. I have to be convinced. I am not right now. 8 MR. CANNA: Your Honor. 9 THE COURT: Yes. And then I promised Ms. Johnson 10 she can speak. 11 MR. CANNA: Yes. I want to respond to Mr. Aloe and 12 then I am happy to hear from Ms. Johnson. 13 On just a couple of points. One, the allegation 14 that my client committed a criminal act I think is 15 inappropriate, and it is not even supported by the 16 documents. I just want to point it out, that when he says 17 that Jordan was directing -- I don't even understand the 18 allegation -- to forge his own name, which is confusing to 19 me at one point. 20 And also, if you read the actual E-Mails that they 21 cite to, Jordan says, "I asked if James is fine with doing 22 notarization electronically due to the coronavirus." This 23 was in 2020, when the notarization laws were actually 24 revised to allow electronic notarization. So I'm not sure 25 that proves it. 17 of 44 FILED: NEW YORK COUNTY CLERK 10/30/2023 04:02 PM INDEX NO. 159110/2023 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 10/30/2023 Proceedings 18 1 Now, when you submit a document of someone else's 2 signature to a notary and say they asked to do it and they 3 did not ask to do it, like Anna did of my client's 4 signature, that is forgery. So I just want to point that 5 out, because I think it is inappropriate for there to be 6 filed documents accusing my client of a crime, and that has 7 happened. 8 THE COURT: They file documents all the time. 9 Filed documents don't make anything true. What makes them 10 true is when I have to make findings of fact, which is 11 coming, unless these parties can find a way to work it out 12 and really get this not-for-profit entity on track in a 13 meaningful, organized way. I don't know. I don't know if 14 they are going to be able to do that. And it may be a 15 situation where a receiver has to come in and, quite 16 frankly, I don't know what that means in terms of regulatory 17 requirements. I haven't explored it all, but what I am 18 saying is that I am not impressed at all in terms of how 19 things have been run. That is why everybody is in the mess 20 that they are in. And if there is a potential for them to 21 clean it up on their own, fantastic, instead of me getting 22 into, well, what has been properly notarized? What hasn't? 23 What has legal effect? What doesn't? How are people on the 24 Board really doing anything? Do they understand their roles 25 in this not-for-profit or have they just been there to be 18 of 44 FILED: NEW YORK COUNTY CLERK 10/30/2023 04:02 PM INDEX NO. 159110/2023 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 10/30/2023 Proceedings 19 1 people on the Board? All concerns that I have, and at the 2 appropriate time, perfectly fine with making those factual 3 determinations. 4 Okay. Let me hear from you, Ms. Johnson. 5 Good morning. 6 MS. JOHNSON: Good morning, Judge. 7 Good morning, counsel. 8 So I am the new kid on the block, Your Honor. I 9 came in August, when I got a call, because I do represent 10 not-for-profits. And because I represent not-for-profits -- 11 As a matter of fact, we just had a big election meeting last 12 night for one of my other HDFCs, which is a not-for-profit. 13 So, like you, I did see some problems played a 14 little messy, things played a little fast and loose. 15 I do want to establish that you're right. Once 16 there is a determination as to whether or not Jennifer is on 17 the Board, really, that's what this about. If she is deemed 18 to be on the Board, then the election is fine. If she is 19 deemed not to be on the Board, then we have a real mess, as 20 you stated. 21 One of the last things that -- Because it is a 22 not-for-profit, it is not a lot of money. They don't 23 generate a lot of money. It is not-for-profit. 24 Also, if we look at this systematically and you 25 find that a receiver is appointed, basically, these 19 of 44 FILED: NEW YORK COUNTY CLERK 10/30/2023 04:02 PM INDEX NO. 159110/2023 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 10/30/2023 Proceedings 20 1 entities, at least Rentability, is over. You know, when 2 there is always these judicial hearings, often times, a 3 judge, like you, is frustrated. Okay, let's start from the 4 beginning. Let's call a new election. Because sometimes 5 the Court is saying, well, it is such a mess, let's just 6 start from the beginning and call a new election. 7 I just would ask that, Your Honor, that that would 8 be the very, very, very, very last thing that could happen, 9 as to a receiver, because this is affordable housing. There 10 are so many tenants on this lottery system that are 11 depending upon this process to go through and for these 12 folks to continue to operate, albeit, operate a lot better 13 than you are doing, okay, but you have so many -- Affordable 14 housing is a problem in the City of New York. So all of 15 these tenants who have gone to this lottery, who have put in 16 their applications, they are all standing by right now. 17 What are we going to do? So I would ask for that to be the 18 very last thing that the Court would do. 19 I also would like to stress that I haven't seen a 20 not-for-profit where a member of the Board is also 21 significantly on in another agency -- You know, it is a bit 22 of a conflict there, and I have told Rentability this. That 23 looks to me as an inherent conflict. They should be 24 separate. Deal with each other, but the Board members 25 should be separate to preserve the integrity of a 20 of 44 FILED: NEW YORK COUNTY CLERK 10/30/2023 04:02 PM INDEX NO. 159110/2023 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 10/30/2023 Proceedings 21 1 not-for-profit. 2 Jennifer -- I looked at -- We have had removal, and 3 in terms of removal of Anna as a Board member, I looked at 4 that notice that was, supposedly, for a meeting in the 5 Hamptons following a holiday weekend is in no way a 6 reasonable assembly. That, in and of itself, would fall in 7 terms of that meeting. 8 THE COURT: Okay. But, Ms. Johnson, what would 9 happen -- Again, what would happen if I said new meeting? 10 Who is voting at this meeting? 11 MS. JOHNSON: Well, before you say new meeting, you 12 would have to determine if Jennifer is on or off? 13 THE COURT: Understood. 14 Let's assume for the moment that Jennifer is off, 15 what happens if I say new meeting? 16 MS. JOHNSON: At that new meeting, then there would 17 have to be an appointment of a new director. They would 18 have to appoint -- That's the first order of business. 19 THE COURT: Who gets to vote? 20 MS. JOHNSON: Well, they would both get to vote. 21 Hopefully, they would come to an agreement as to who it will 22 be, which I am hoping that both sides would understand that 23 this lawsuit is seriously jeopardizing -- City Five is 24 seriously jeopardizing Rentability. But you are right. 25 They would both get to vote. And this is why on 21 of 44 FILED: NEW YORK COUNTY CLERK 10/30/2023 04:02 PM INDEX NO. 159110/2023 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 10/30/2023 Proceedings 22 1 not-for-profits, we require a three-member Board. It is 2 absolutely required. And in the by-laws, it is very proper 3 that a resignation of a director has to be in writing. 4 Their by-laws require it, and the Court -- the Court laws 5 and in the case law, it states Jennifer would have to say "I 6 hereby resign of this Board." 7 THE COURT: Is there case law, Ms. Johnson, because 8 I just didn't see it in the papers in front of me. Is there 9 case law that says that the resignation has to contain the 10 word "resignation"? 11 MS. JOHNSON: No, but in their by-laws, and what 12 the case law says is that the Court must follow the strict 13 rules that are contained in the by-laws. If the by-laws