Why the four replacement seats failed

The distinction is between a vacancy that already existed and a vacancy the owners themselves created. The bylaws treated them differently, and the court enforced the difference:

“Filling vacancies arising from removal of a board member is governed not by § 4.9 but by § 2.10. That section authorizes a majority of remaining board members to fill vacancies resulting from 'removal, resignation, or death' of a board member—not expiration of term or other reason. … And § 2.10 provides that these vacancies are to be filled by a majority of sitting board members—not by the unit owners.”

So the owners had the power to remove and not the power to replace. The seats they emptied could only be filled by the remaining directors — of whom, after the removals, there were three.

The consequence: a board that cannot act

“In turn, defendants cannot represent that the three members elected at least one other member to form a quorum. Absent a quorum—defined as a majority of board members, i.e., four members—the board is unable to transact business on behalf of the condominium.”

And there was no one in charge:

“Finally, the court agrees with plaintiff that Leong has not been appointed interim-president or president of the board. Absent a president and vice president of the board—both of whom were removed with the written consent—it is up to the board itself to appoint an interim president by majority vote.”

A board of three, needing four for a quorum, unable to appoint a president because appointing one requires a majority of a board that cannot convene. That is the practical outcome of a successful removal campaign that did not think past the removal.

What both sides should take from it

For owners organising a removal: read the vacancy provision before the removal provision. If vacancies arising from removal are filled by the remaining directors, removing a majority of the board hands the replacement decision to the minority you left in place — or, if you remove enough of them, to nobody. The sequence matters, and in many New York bylaws the only route to a board the owners choose is an election at a meeting, not a written consent.

For a board facing one: a hearing right tied to action “at a meeting” is not a hearing right at all where the bylaws also permit action by written consent. If your bylaws contain both provisions, the written-consent route is available and the protections you think you have may not apply. Our New York board elections page covers the mechanics, and our director qualifications page covers who may serve.

For any New York condominium: this is a reason to read §§ 2.9, 2.10, 4.9 and 4.10 of your own bylaws together, as a system, before there is a dispute. They are almost always drafted from the same sponsor template, and they almost always contain the same interaction.

The board could not charge the fight to the owners

There is a second holding worth knowing about, and it cuts against boards. The board tried to use the bylaws' enforcement and cost-recovery provisions to get its legal fees for the governance dispute. The court refused:

“Section 9.2 is limited to situations in which unit owners fail to fulfill their obligations under the by-laws; it allows for the board to enjoin or remedy the violation. Similarly, § 9.4 provides that costs incurred by the board in correcting a unit owner's breach or default will be paid by the unit owner to the board. Article 9 contemplates violations such as unit owners' obligations to paint and maintain their units, not election/removal/filling vacancies of board members.”

Bylaw fee-shifting clauses written around unit-owner maintenance defaults do not reach election and removal disputes. A board that assumes the challengers will pay for the litigation is likely to be wrong.

The same theme appears elsewhere in New York this year. In one condominium lien-foreclosure matter, a board that had recovered the cost of abating a hoarding condition could not also recover the attorney fees from the related action out of the sale surplus, because the bylaw provision authorising recovery of “costs” did not name legal fees — and the court held it was law of the case that the lien “did not encompass the $30,719 in attorney fees incurred in the related hoarding action.”² In another, the First Department noted a co-op's one-way attorney-fee provision was “substantially identical to the one we previously held unenforceable in Matter of Krodel v Amalgamated Dwellings Inc.”³

Stated at a category level: New York courts read association fee-recovery provisions narrowly and against the association. A board planning to fund a dispute out of the other side's pocket should first confirm that the clause it is relying on actually names the category of cost it intends to recover, and that the dispute is the kind of dispute the clause was written for.

The Mulberry decision also supplies the reason courts intervene quickly in these fights, quoting the Second Department: “When 'control and management' of an entity is 'at stake, money damages [are] not sufficient.'” It is a trial-level, unreported decision, so persuasive rather than binding, and it does not predict how any other board fight would come out.