HABITAT
One Co-op, Two Competing Boards
In the great big playground of life, co-ops and condos are the sandbox, or maybe the tree house. Either way, the kids playing there mostly get along and mostly determine their own workable rules of behavior. And then you have your Calvin and Hobbes situations, where one board member declares he's president, and another board member declares a coup, and another board member calls the police and a judge appoints a referee to sort it all out.
This is the case, with surprising literalness, at 622A President Street in Brooklyn's Park Slope neighborhood. Despite the seeming serenity of the four-story, 1912-vintage red-brick building on a leafy side street, the shareholders of its four apartments have been embroiled in a lawsuit that even Calvin might find bewildering.
Brett E. Wynkoop and Kathleen Keske have owned Apartments 1 and 2 since 1995; a circular stair joins the first-floor Apartment 1 to a basement rec room, and the couple sublets Apartment 2. Kyle Taylor and his wife, Hilary, bought Apartment 3 in 2010 and have lived there on and off. Rajeev Subramanyam bought Apartment 4 in 2006. With each apartment representing 25 percent of the shares, no one owner is a majority shareholder. There's no tiebreaker.
No Meeting of the Minds
From the time Wynkoop and Keske bought their place, the 622A President Street Owners Corp. shareholders ran the co-op informally, without following the bylaws of the state's Business Corporation Law. There was no board or management company. Wynkoop assumed the unelected duty of treasurer and served as building manager, while Keske took on the roles of both vice-president and secretary. They never held annual meetings or board-member elections — not even after the other owners arrived. Disputes arose between Wynkoop/Keske and the others among such things as building maintenance, including repair of a water leak in a skylight, and access to the basement areas.
It wasn't until October 2011 that the Taylors and Subramanyam requested a shareholder meeting — "requested" being the operative word, since, they asserted, they received no response despite continued efforts. So the Taylors and Subramanyam in March 2012 filed a type of lawsuit called a shareholder derivative action against Wynkoop/Keske and their subtenant James Borland, seeking a court order to compel shareholder meetings with elections. They also wanted to eject Wynkoop/Keske from the cellar and alleged a breach of fiduciary duty.
That suit got tossed on technical grounds in November 2013, but that previous April the two sides had agreed in court that each shareholder was to be a board member, with Kyle Taylor representing the Taylors. That stipulation, unfortunately, did not address the appointment of corporate officers.
Going Forth in July
And so, in July, in an action the court almost certainly didn't anticipate or want, self-appointed secretary Keske called a meeting to remove Taylor and Subramanyam from the board and elect replacements. Taylor and Subramanyam showed up for the meeting, declared their intended votes to oppose any change in the board and left. Regardless, Wynkoop/Keske called the meeting to order, voted out Taylor and Subramanyam and elected one Charmaine Chester as a third member of the board.
Wynkoop/Keske then filed their own suit in November 2013 seeking to solidify their positions regarding the cellar and subletting, and alleging Taylor and Subramanyam were negligent in making repairs and weren't paying maintenance. The defendants made counterclaims of breach of contract, breach of fiduciary duty and more.
Could it get any uglier? Yes!
Taylor said Wynkoop assaulted him
by slapping his hand with a folder.
Wynkoop said he was simply pulling
the folder away. Taylor called police
"Secretary" Keske announced an annual shareholder meeting for May 16, 2014. Taylor and Subramanyam arrived with attorney Joanna Peck, of Adam Leitman Bailey, PC, whom they desired to act as an election inspector. "The meeting was contentious from the beginning," Judge David I. Schmidt dryly noted in his ruling. Wynkoop (with a proxy from Keske) asserted he was the only board member present and — correctly in this, at least, said the court — objected to Peck's right to serve as an election inspector. He then, however, announced that the meeting was being adjourned to another location. But Taylor and Subramanyam, asserting they were indeed board members, voted to appoint Peck as inspector. Wynkoop remained at the meeting, saying, "Nyah! Nyah! You have no authority! You were voted off the board!" (We're paraphrasing.)
During an argument over Taylor and Subramanyam's request that Wynkoop read the minutes from the last meeting, Taylor asserted Wynkoop assaulted him by slapping his hand with a folder. Wynkoop denied this, saying he was simply pulling the folder away from Taylor, who had tried to grab it out of his hand. Taylor, nevertheless, called the police, who arrived, interviewed the parties and filed a report but did not arrest Wynkoop.
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