Preview
FILED: DUTCHESS COUNTY CLERK 04/12/2021 09:56 AM INDEX NO. 2017-50017
NYSCEF DOC. NO. 416 RECEIVED NYSCEF: 04/12/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
--------x
BOARD OF MANAGERS OF VAN WYCK GLEN
CONDOMINIUM, THE BOARD OF MANAGERS OF
VAN WYCK MEADOWS CONDOMINIUM. A
Condominium created pursuant to Article 9-B of the
Real Property Law, on behalf of its unit owners,
Index No.: 2017-50017
Plaintiffs,
AFFIDAVIT OF COLLEN
- against - EDWARDS IN SUPPORT OF
THE DEFENDANTS'
VAN WYCK AT MERRITT PARK HOMEOWNERS MOTION TO RENEW
ASSOCIATION, INC., ANTHONY COSTA AND DICK AND REARGUE
HACK,
Defendants.
--------x
VAN WYCK AT MERRITT PARK HOMEOWNERS
ASSOCIATION, [NC.,
Third-Party Plaintiff,
-against-
THE BOARD OF MANAGERS OF VAN WYCK
MEADOWS CONDOMINIUM,
. 1111ry?:::111 .......x
STATE OFNEW YORK )
)ssi
COUNTY OF DUTCHESS )
COLLEN EDWARDS, being duly sworn, deposes and states the following, under the
penalties of perjury:
1. I am the Plesident of the Board of Directors of the Van Wyck at Merritt Park
Homeownerc erro"iu]ion, Inc. (the "HOA"). As such, I am fully familiar with the facts set forth
in this affirmation.
2. I am an attorney, having graduated from Georgetown Law School in Washington
D.C. and I passed Pennsylvaniabar in 1988 and was sworn ln by Chief Judge Loren Smith in
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FILED: DUTCHESS COUNTY CLERK 04/12/2021 09:56 AM INDEX NO. 2017-50017
NYSCEF DOC. NO. 416 RECEIVED NYSCEF: 04/12/2021
Washington DC. I served as a Law Clerk to Chief Judge Loren Smith at the United States Court
of Federal Claims Court from 1988 to 1989. At the present time, I am not actively engaged in
the practice of law.
3. I am a homeowner at Van Wyck at Merritt Park and live in the Glen. I purchased my
residence in February 2006 and, have lived there continuously since that date.
4. I became a member of the Board of the HOA in October 2018. In connection with
my position as the President of the HOA, I learned of the fact the HOA's prior counsel, George
Dieter ("Dieter"), advised Judge Victor Grossman (the Judge previously handling this case prior
to its transfer to Judge Acker), of a potential conflict of interest. This was set forth in a letter
prepared by Dieter dated August2l,2017. However, the HOA Board did not learn of the
potential conflict of interest at that time.
5. Dieter prepared a Motion for Summary Judgment prior to July 27,2017, to secure
dismissal of all the claims in this case. This was prior to the time that he divulged the existence
of his potential conflict of interest.
6. The HOA Board requested that Dieter file the Motion for Summary Judgment. He
did not do so. He also denied that he prepared the motion in the first place.
7. The HOA Board instructed Dieter to add the Managing Agent, McGrath Associates,
and its principal, Hussein Khoder, to the action. The Court (Judge Grossman) ordered Dieter to
do so on two occasions: August 18,2017 (I.{YSCEF DOC # 35) and on November 27,2017
(I{YSCEF DOC # 62) 3. Dieter did not do so.
8. Dieter adf ised Judge Grossman, of the potential conflict of interest by letter dated
August 21,2017. In doing so, Dieter also notified all the parties involved in the litigation of the
potential conflict of interest. However, the HOA was not advised of this conflict of interest at
that time. The HOA did not learn of this until March 2019. In addition, Dieter did not advise
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FILED: DUTCHESS COUNTY CLERK 04/12/2021 09:56 AM INDEX NO. 2017-50017
NYSCEF DOC. NO. 416 RECEIVED NYSCEF: 04/12/2021
Judge Acker of his conflict of interest after Judge Acker assumed responsibility for this case
from Judge Grossman in or about January of 2018.
9. Once the HOA learned of the points and issues set forth in the preceding paragraphs,
it made a request that the law firm assigned by its Directo,rs and Officers Liability Insurance
Company (CNA), the Office of Lori D. Fishman, which employed Dieter, withdraw as counsel
and that new counsel be substituted. This occurred in our about March 2019. As a result of this
request, the handling of this file was transferred to the law firm of Braverman Greenspun, P.C.
10. Once this file was transferred to Braverman Greenspun, P.C., the HOA maintained its
position that the Condominiums' purported unilateral amendment of their By-Laws was illegal
and anullity, and that the proposed piecemeal settlement of the case under discussion at the time
could not be effectuated in light of the terms of the Governing Documents. Rather, only a
settlement involving all three Condominiums at the Community and the HOA would be
permissible under the terms of the Governing Documents. From the time that Braverman
Greenspun, P.C. appeared as counsel for the HOA, there was never an offer by the three
Condominiums to join in a settlement under terms that were agreed to by all parties.
1 1. There are additional details relevant to the HOA's relationship with Dieter, which
will be set forth below.
12.InMarch 20lg,l participated in a Board meeting. It was scheduled and requested by
Dieter to discuss the HOA's recent decision to move forward with a trial in the case against the
Board of Managers.
13. Dieter beggn the meeting stating, "The board's decision to move forward with the
trial was a folly." I interrupted and asked if he could explain why this was so. He stated that he
had vigorously argued before the court that a unilateral amendment of the Meadows I By-Laws
violated the HOA's governing documents. I told him that this was not what he had reported to
the board previously, and that there were other issues which'we found troubling regarding his
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FILED: DUTCHESS COUNTY CLERK 04/12/2021 09:56 AM INDEX NO. 2017-50017
NYSCEF DOC. NO. 416 RECEIVED NYSCEF: 04/12/2021
representation of the HOA based on a recent investigation. He responded that my concems were
misplaced, as it was the court's position that the amendment was legal.
14. I told him I believed he had been keeping the board in the dark about the court
proceedings. I pointed out that in an email to the board in November 2018, he stated that the
HOA could contest the amendments. He replied: "You are misinformed; Judge Acker ruled the
amendments are valid."
15. The HOA Board members were stunned by his statement since it was inconsistent
with his prior advice to the HOA on this issue. I told Dieter that I was concerned that he might
have a bias adverse to the interests of the HOA. I asked for additional information.
16. First, I asked why he did not mount a vigorous defense against the Meadow I By-
Laws amendment at the time the issue was first raised in September 2018. He said that from the
outset he had told the court that the amendment violated the By-Laws. I asked then why he did
not file a motion challenging the amendment. He said that the HOA could not challenge the
amendment because it lacked standing. This too was inconsistent with his prior advice - - that
the HOA could challenge the amendment.
17. Second, I asked why he had changed his position on our chances for winning a
summary judgment motion from our last discussion on the issue which was in February 2019.
He responded that he had not changed his position as he never believed that such a motion would
be successful. I asked him why he drafted such a motion in20l7 if he thought it had little
chance of success. He said that he never created such a motion because he never believed any
such motion would lqe successful. The HOA knew this was not correct because it had a copy of
the motion papers.
18. Next, I asked Dieter if Judge Grossman directed him in 2017 to file a motion to add
McGrath (the community's managing agent) as a party to the case. He agreed that he had been
directed to do so by Judge Grossman.
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FILED: DUTCHESS COUNTY CLERK 04/12/2021 09:56 AM INDEX NO. 2017-50017
NYSCEF DOC. NO. 416 RECEIVED NYSCEF: 04/12/2021
19. Dieter's failure to bring McGrath into the action appeared to me to be related to
Dieter's conflict of interest involving McGrath. However, Dieter did not disclose this conflict to
the HOA at the time he was directed by Judge Grossman to implead McGrath. For this reason, I
asked Dieter why he had not told the HOA of the potential conflict with McGrath. Dieter did not
respond.
20. I next asked Dieter if he informed Judge Acker of his conflict of interest with
McGrath. Again, he did not respond. I then asked Dieter if he misled Judge Acker by failing to
disclose the potential conflict of interest. He denied doing so. I then asked Dieter if his failure to
notiff Judge Acker of the potential conflict of interest was motivated by personal gain. Again,
he did not answer.
21. I continued to focus on his ability to provide unbiased representation to the HOA. and
asked how he was able to determine if McGrath should be brought in the case, and whether he
sided with the HOA or McGrath on the issue. Again, there was no response.
22. GivenDieter's lack of response to several questions, it was my impression at this
point that he preferred to end the call. However, I continued. I asked him how he could
represent the HOA when he had interests with McGrath as well. I pointed out that I believed that
in misleading the Board he had violated the New York States Professional Rules of
Responsibilities and put in question his ability to provide the HOA with an unbiased legal
opinion.
5 of 6
FILED: DUTCHESS COUNTY CLERK 04/12/2021 09:56 AM INDEX NO. 2017-50017
NYSCEF DOC. NO. 416 RECEIVED NYSCEF: 04/12/2021
Apr 09 21 0B:3Ba Angela Edwards 8458965696 p.1
23. Finally, I saitl to Dieter: "You have misled the Board wiltfield key informalion about
the Court praceedings, and it appears that you afrempted to help McGrath ruho is in league with
the Board of I\{anagers." I advised Dieter that I planned to repart him to the New York State
Grievancs Committee, and then added one more thing: "You are frred." He.hung up and the cali
ended.
before me this
2421.
Notary Public
JONATHAN KOLBRENER
tlotirv-Purblic, State o[ Nevu York
No.02KOb07459B
Oualified in Westchest Y *9:l\Y.:
-4-(
Commission ExPires: -J )aP
I t
6 of 6
Preview
FILED: DUTCHESS COUNTY CLERK 04/12/2021 09:56 AM INDEX NO. 2017-50017 NYSCEF DOC. NO. 416 RECEIVED NYSCEF: 04/12/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF DUTCHESS --------x BOARD OF MANAGERS OF VAN WYCK GLEN CONDOMINIUM, THE BOARD OF MANAGERS OF VAN WYCK MEADOWS CONDOMINIUM. A Condominium created pursuant to Article 9-B of the Real Property Law, on behalf of its unit owners, Index No.: 2017-50017 Plaintiffs, AFFIDAVIT OF COLLEN - against - EDWARDS IN SUPPORT OF THE DEFENDANTS' VAN WYCK AT MERRITT PARK HOMEOWNERS MOTION TO RENEW ASSOCIATION, INC., ANTHONY COSTA AND DICK AND REARGUE HACK, Defendants. --------x VAN WYCK AT MERRITT PARK HOMEOWNERS ASSOCIATION, [NC., Third-Party Plaintiff, -against- THE BOARD OF MANAGERS OF VAN WYCK MEADOWS CONDOMINIUM, . 1111ry?:::111 .......x STATE OFNEW YORK ) )ssi COUNTY OF DUTCHESS ) COLLEN EDWARDS, being duly sworn, deposes and states the following, under the penalties of perjury: 1. I am the Plesident of the Board of Directors of the Van Wyck at Merritt Park Homeownerc erro"iu]ion, Inc. (the "HOA"). As such, I am fully familiar with the facts set forth in this affirmation. 2. I am an attorney, having graduated from Georgetown Law School in Washington D.C. and I passed Pennsylvaniabar in 1988 and was sworn ln by Chief Judge Loren Smith in 1 of 6 FILED: DUTCHESS COUNTY CLERK 04/12/2021 09:56 AM INDEX NO. 2017-50017 NYSCEF DOC. NO. 416 RECEIVED NYSCEF: 04/12/2021 Washington DC. I served as a Law Clerk to Chief Judge Loren Smith at the United States Court of Federal Claims Court from 1988 to 1989. At the present time, I am not actively engaged in the practice of law. 3. I am a homeowner at Van Wyck at Merritt Park and live in the Glen. I purchased my residence in February 2006 and, have lived there continuously since that date. 4. I became a member of the Board of the HOA in October 2018. In connection with my position as the President of the HOA, I learned of the fact the HOA's prior counsel, George Dieter ("Dieter"), advised Judge Victor Grossman (the Judge previously handling this case prior to its transfer to Judge Acker), of a potential conflict of interest. This was set forth in a letter prepared by Dieter dated August2l,2017. However, the HOA Board did not learn of the potential conflict of interest at that time. 5. Dieter prepared a Motion for Summary Judgment prior to July 27,2017, to secure dismissal of all the claims in this case. This was prior to the time that he divulged the existence of his potential conflict of interest. 6. The HOA Board requested that Dieter file the Motion for Summary Judgment. He did not do so. He also denied that he prepared the motion in the first place. 7. The HOA Board instructed Dieter to add the Managing Agent, McGrath Associates, and its principal, Hussein Khoder, to the action. The Court (Judge Grossman) ordered Dieter to do so on two occasions: August 18,2017 (I.{YSCEF DOC # 35) and on November 27,2017 (I{YSCEF DOC # 62) 3. Dieter did not do so. 8. Dieter adf ised Judge Grossman, of the potential conflict of interest by letter dated August 21,2017. In doing so, Dieter also notified all the parties involved in the litigation of the potential conflict of interest. However, the HOA was not advised of this conflict of interest at that time. The HOA did not learn of this until March 2019. In addition, Dieter did not advise 2 of 6 FILED: DUTCHESS COUNTY CLERK 04/12/2021 09:56 AM INDEX NO. 2017-50017 NYSCEF DOC. NO. 416 RECEIVED NYSCEF: 04/12/2021 Judge Acker of his conflict of interest after Judge Acker assumed responsibility for this case from Judge Grossman in or about January of 2018. 9. Once the HOA learned of the points and issues set forth in the preceding paragraphs, it made a request that the law firm assigned by its Directo,rs and Officers Liability Insurance Company (CNA), the Office of Lori D. Fishman, which employed Dieter, withdraw as counsel and that new counsel be substituted. This occurred in our about March 2019. As a result of this request, the handling of this file was transferred to the law firm of Braverman Greenspun, P.C. 10. Once this file was transferred to Braverman Greenspun, P.C., the HOA maintained its position that the Condominiums' purported unilateral amendment of their By-Laws was illegal and anullity, and that the proposed piecemeal settlement of the case under discussion at the time could not be effectuated in light of the terms of the Governing Documents. Rather, only a settlement involving all three Condominiums at the Community and the HOA would be permissible under the terms of the Governing Documents. From the time that Braverman Greenspun, P.C. appeared as counsel for the HOA, there was never an offer by the three Condominiums to join in a settlement under terms that were agreed to by all parties. 1 1. There are additional details relevant to the HOA's relationship with Dieter, which will be set forth below. 12.InMarch 20lg,l participated in a Board meeting. It was scheduled and requested by Dieter to discuss the HOA's recent decision to move forward with a trial in the case against the Board of Managers. 13. Dieter beggn the meeting stating, "The board's decision to move forward with the trial was a folly." I interrupted and asked if he could explain why this was so. He stated that he had vigorously argued before the court that a unilateral amendment of the Meadows I By-Laws violated the HOA's governing documents. I told him that this was not what he had reported to the board previously, and that there were other issues which'we found troubling regarding his 3 of 6 FILED: DUTCHESS COUNTY CLERK 04/12/2021 09:56 AM INDEX NO. 2017-50017 NYSCEF DOC. NO. 416 RECEIVED NYSCEF: 04/12/2021 representation of the HOA based on a recent investigation. He responded that my concems were misplaced, as it was the court's position that the amendment was legal. 14. I told him I believed he had been keeping the board in the dark about the court proceedings. I pointed out that in an email to the board in November 2018, he stated that the HOA could contest the amendments. He replied: "You are misinformed; Judge Acker ruled the amendments are valid." 15. The HOA Board members were stunned by his statement since it was inconsistent with his prior advice to the HOA on this issue. I told Dieter that I was concerned that he might have a bias adverse to the interests of the HOA. I asked for additional information. 16. First, I asked why he did not mount a vigorous defense against the Meadow I By- Laws amendment at the time the issue was first raised in September 2018. He said that from the outset he had told the court that the amendment violated the By-Laws. I asked then why he did not file a motion challenging the amendment. He said that the HOA could not challenge the amendment because it lacked standing. This too was inconsistent with his prior advice - - that the HOA could challenge the amendment. 17. Second, I asked why he had changed his position on our chances for winning a summary judgment motion from our last discussion on the issue which was in February 2019. He responded that he had not changed his position as he never believed that such a motion would be successful. I asked him why he drafted such a motion in20l7 if he thought it had little chance of success. He said that he never created such a motion because he never believed any such motion would lqe successful. The HOA knew this was not correct because it had a copy of the motion papers. 18. Next, I asked Dieter if Judge Grossman directed him in 2017 to file a motion to add McGrath (the community's managing agent) as a party to the case. He agreed that he had been directed to do so by Judge Grossman. 4 of 6 FILED: DUTCHESS COUNTY CLERK 04/12/2021 09:56 AM INDEX NO. 2017-50017 NYSCEF DOC. NO. 416 RECEIVED NYSCEF: 04/12/2021 19. Dieter's failure to bring McGrath into the action appeared to me to be related to Dieter's conflict of interest involving McGrath. However, Dieter did not disclose this conflict to the HOA at the time he was directed by Judge Grossman to implead McGrath. For this reason, I asked Dieter why he had not told the HOA of the potential conflict with McGrath. Dieter did not respond. 20. I next asked Dieter if he informed Judge Acker of his conflict of interest with McGrath. Again, he did not respond. I then asked Dieter if he misled Judge Acker by failing to disclose the potential conflict of interest. He denied doing so. I then asked Dieter if his failure to notiff Judge Acker of the potential conflict of interest was motivated by personal gain. Again, he did not answer. 21. I continued to focus on his ability to provide unbiased representation to the HOA. and asked how he was able to determine if McGrath should be brought in the case, and whether he sided with the HOA or McGrath on the issue. Again, there was no response. 22. GivenDieter's lack of response to several questions, it was my impression at this point that he preferred to end the call. However, I continued. I asked him how he could represent the HOA when he had interests with McGrath as well. I pointed out that I believed that in misleading the Board he had violated the New York States Professional Rules of Responsibilities and put in question his ability to provide the HOA with an unbiased legal opinion. 5 of 6 FILED: DUTCHESS COUNTY CLERK 04/12/2021 09:56 AM INDEX NO. 2017-50017 NYSCEF DOC. NO. 416 RECEIVED NYSCEF: 04/12/2021 Apr 09 21 0B:3Ba Angela Edwards 8458965696 p.1 23. Finally, I saitl to Dieter: "You have misled the Board wiltfield key informalion about the Court praceedings, and it appears that you afrempted to help McGrath ruho is in league with the Board of I\{anagers." I advised Dieter that I planned to repart him to the New York State Grievancs Committee, and then added one more thing: "You are frred." He.hung up and the cali ended. before me this 2421. Notary Public JONATHAN KOLBRENER tlotirv-Purblic, State o[ Nevu York No.02KOb07459B Oualified in Westchest Y *9:l\Y.: -4-( Commission ExPires: -J )aP I t 6 of 6