Preview
FILED: QUEENS COUNTY CLERK 05/29/2019 09:24 AM INDEX NO. 707381/2019
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 05/29/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
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YANGSIL KANG, individually and as a shareholder
on behalf of ELIM HOME CARE AGENCY, LLC and
EVERGREEN ADULT DAYCARE CENTER INC.,
Plaintiff, Index No.: 707381/2019
-against-
SR HOMECARE OF NY, INC.,
EVERGREEN ADULT DAY CARE
IN FLUSHING INC., EVERGREEN Hon. Frederick Sampson
J.S.C.ADULT DAY CARE IN NY INC.,
EVERGREEN FLUSHING
NEW YORK LLC, EVERGREEN SENIOR AFFIDAVIT OF
DAYCARE CENTER INC., EVERGREEN PLAINTIFF IN
HOMECARE SERVICE OF NY, INC., SUPPORT OF ORDER
BYUNGKI KOO a/k/a JAMES KOO and TO SHOW CAUSE
HYUNJONG KOO a/k/a TAMMY KOO,
Defendants
ELIM HOME CARE AGENCY, LLC and
EVERGREEN ADULT DAYCARE CENTER INC.,
Nominal Defendants.
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STATE OF NEW YORK )
) ss.:
COUNTY OF QUEENS )
YANGSIL KANG, being duly sworn, deposes and says:
1. I am a plaintiff in the above-entitled action. I submit this Affidavit in support of
my application for a preliminary injunction.
2. The statements made herein are based upon my personal knowledge, and I am
personally familiar with all the relevant facts, circumstances and proceedings herein. I am aware
that if any statements made herein are willfully false, I am subject to punishment.
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3. I am an equity partner or corporate shareholder in three businesses (the
“Businesses”) co-owned by Defendants Byungki Koo and/or Hyunjong Koo (“the Koos”).
a. Attached hereto as Exhibit “1” is the partnership agreement relating to SR
Homecare of NY, Inc. and reflecting my equity in the partnership. I invested
$150,000 in this business (the “SR” partnership).
b. Attached hereto as Exhibit “2” is documentation of my ownership interest in
Elim Home Care Agency, LLC.
c. Attached as Exhibit “3” is documentation of my ownership interest in
Evergreen Adult Daycare, Inc., which was subsequently transferred to
Evergreen Adult Daycare Center, Inc. As indicated on the documentation, I
made a $250,000 investment in the business ($175,000 with two checks,
copies of which are included and $75,000 in cash).
4. At present, all of my business interests in these companies are under siege from the
Koos. Detailed below are the aggressive actions they have taken to destroy my interests in the
companies. They have shut off my access to bank accounts, they have issued notices barring me
from the business premises, and most importantly they have sought to remove clients from the
businesses and transfer them to other businesses in which I have no interest. The Businesses cannot
sustain themselves
5. Money damages will not be sufficient to compensate me for the harm I am currently
facing for the following reasons:
a. The record shows that the Koos are engaged in fraud, and that the assets of
the company are likely to be dissipated and disbursed beyond recovery by
the time of trial if an injunction is not granted.
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b. I am unable to care for myself financially without my income from the
businesses.
c. Clients of the business will be alienated because the proposed replacement
manager is not qualified to deal with them, in fact cannot even speak to them
in their language. Once the clients leave the business, they will not be
recoverable and the business will not be able to sustain itself.
d. Based on my personal observations and knowledge, the proposed
replacement managers of the business lacks any credentials to carry out
financial functions, which will impair the survival of the business. It will be
impossible for the proposed replacements to preserve the financial status quo
of the businesses since, based on my personal observations, Mr. Koo is
unable to carry out these functions himself..
6. As stated in my Verified Complaint in this matter, based on information I have
recently learned the Koos are currently maneuvering to oust me from my ownership interests in
the corporate businesses named herein, and doing so in a way that will likely lead to the waste and
dissolution of those businesses, violating both my interests and those of the corporate entities
themselves. See discussion below. I depend on the viability of these businesses for my
livelihood, and will likely become a public charge if they are not immediately protected.
THE KOOS ARE ENGAGED IN A PATTERN OF FRAUD
7. As explained in my Verified Complaint, the Koos are currently being sued in
Queens Supreme Court for ousting other former corporate business partners from their rightful
shares in the “SR” business entity which was then passed on unbeknownst to me. The Koos have
never provided me with any information about this lawsuit, I learned about it only through my own
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recent investigation. This gives me even more concern that I am about to watch all my corporate
assets in the Businesses go up in smoke. I will never be able to recover these assets once they are
lost because the Koos are engaged in a pattern of fraud and will likely conceal and dissipate such
assets and because once alienated from the business by improper management the clients will not
be recoverable.
THE KOOS ARE THREATENING TO IMMINENTLY DESTROY ELIM HOMECARE
AGENCY, LLC AND THE SR PARTNERSHIP
8. My most immediate concern is for the assets of the partnership related to SR
Homecare of NY, Inc. and the corporation Elim Home Care Agency, LLC., but I believe that all
my financial interests related to all the defendants are currently in direct and immediate jeopardy.
9. In regard to these two businesses, I have two main concerns:
a. First, as stated in my Verified Pleading, my observations in the workplace have led
me to conclude that the Koos are currently working to divert all the clients from these businesses to
other corporate entities without compensating me or the Elim entity. These clients are the primary
assets of the companies. The businesses cannot survive without them. Attached hereto as Exhibit
“4” is a letter dated February 15, 2019, from the New York Department of Health which discusses
a “closure plan” as to which I have never been advised or consulted. This letter confirms my
observations that the Koos plan to divert the SR partnership’s clients and shut it down. Attached
hereto as Exhibit “5” is a letter dated April 10, 2019, from the New York Department of Health to
SR Homecare of NY, Inc. issuing a cease and desist order due to failure to file required registration
statements. The Koos excluded me from any role or responsibility in filing these statements, and
never informed me about the lack of a filing or the receipt of the cease and desist order. This
correspondence is further proof that the Koos are seeking to erase my financial interests in the
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businesses and destroy the assets of the entities with which I am connected. I only learned about
these two letters in the past few days as I began investigating the actions of the Koos.
b. Second, as stated in my Verified Pleading, my observations in the workplace further
underscore that the Koos are currently working to replace me as the operating officer in charge of
client development and client relations. I have spent more than four years building the client books
of the various corporate businesses named herein, vastly expanding them from what I found when I
took them over. The individuals who the Koos are turning towards in order to take over these
duties, as far as I know, have no qualifications to manage such clients, much less to grow the
market share. If I am not protected with a preliminary injunction and am ousted as the manager, the
clients will leave our business and find homes elsewhere, and that it will be virtually impossible to
bring them back once my (and the corporate) ownership rights are confirmed during the course of
this litigation.
i. In regard to the SR partnership, the letter attached hereto as Exhibit 4
is addressed to Yvonne Ward, referring to her as the “Administrator”
of SR Home Care of N.Y., Inc. This indicates that the Koos are
planning to replace me with Ms. Ward, who I know to be a person
lacking the necessary credentials to maintain the client base of the
businesses. The letter attached as Exhibit 5 is not addressed to a
specific person, and upon information and belief based on my
observations in the workplace all such correspondence is being
diverted to Ms. Ward and then to the Koos. The following are the
reasons why I believe that Ms. Ward is incapable of maintaining the
status quo of the SR partnership without my presence:
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1. Ms. Ward does not communicate in Korean, but most of the
clients and most of the staff of the business rely on Korean to
communicate. As such, she cannot effectively communicate
at all within the business. Attached hereto as Exhibit 6 is a
copy of a text message from a client named Mr. In Bok Bae,
who is complaining about poor quality of service due to
inability to communicate with key staff in Korean, together
with a certified translation of the message.
2. Ms. Ward has no training or experience in billing or payroll.
She cannot read balance sheets or oversee financial records to
make sure that the company’s financial interests are
protected. As stated in my Verified Complaint, while I had
no authority to set wage rates or amounts paid to employees
for overtime, since all such decisions were made by the
Koos, I was responsible for overseeing technical processes of
the billing of clients and the payment of employees, vital
functions of the business which must be handled by a
competent manager.
ii. In regard to Elim Home Care Agency, LLC, I have been informed
by staff that Mr. Johnny Eng has been hired, without my knowledge
or consent, to manage the business. The following are the reasons
why I believe that Mr. Eng is incapable of maintaining the status quo
of the SR partnership without my presence:
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1. Mr. Eng does not communicate in Korean, but most of the
clients and most of the staff of the business rely on Korean to
communicate. As such, he cannot effectively communicate
at all within the business. Attached hereto as Exhibit 6 is a
copy of a text message from a client named Mr. In Bok Bae,
who is complaining about poor quality of service due to
inability to communicate with key staff in Korean, together
with a certified translation of the message.
2. Mr. Eng has no training or experience in billing or payroll.
He cannot read balance sheets or oversee financial records to
make sure that the company’s financial interests are
protected. As stated in my Verified Complaint, while I had
no authority to set wage rates or amounts paid to employees
for overtime, since all such decisions were made by the
Koos, I was responsible for overseeing technical processes of
the billing of clients and the payment of employees, vital
functions of the business which must be handled by a
competent manager.
10. Based on the information available to me from my observations in the premises of
the defendants and my communications with the Koos and other staff of the Businesses, the Koos
are currently in the process of secretly shifting the corporate assets, chiefly the client books of
business, of the “SR” and “Elim” businesses to other corporate defendants herein or elsewhere, and
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that they imminently plan to close off access to all the businesses, and that they are doing the same
in regard to all my other business interests with which they are connected.
11. Within the past few weeks, the Koos have taken the following aggressive actions to
wipe out my financial stakes in these companies and severely undermine their viability:
a. On April 25, 2019, the Koos cut off my access to bank account of Evergreen
Home Care Service of NY, Inc., which controlled the operating budget of the
SR partnership. See Exhibit 7 attached hereto. The account was provided
by Bank of America. The consequences of this action are that I became
unable to verify payments on behalf of SR partnership clients by their
insurance companies to the SR partnership. I am the only one associated
with the SR partnership who is competent and qualified to audit these
payments, and the SR partnership will likely lose substantial revenues due to
the Koos action. Byungki Koo cannot audit these financial records, this is
one of the reasons he formed a partnership with me, so that I could manage
such responsibilities. Moreover, this action makes it impossible for me to
obtain an accounting of the partnership revenues, which I have demanded
from the Koos, and makes it possible for them to dissipate SR partnership
revenues without my knowledge. When I contacted staff at the Evergreen
Home Care Service of NY, Inc. offices to inquire about this action, I was
told that Byungki Koo had ordered the bank to terminate my access, that
Johnny Eng was “not stable” and “threatening” and was not carrying out his
duties in an effective manner, and that “Mr. Koo does not care about the
company or the employees.” It was made clear to me by staff that they will
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not continue with the company under such circumstances. Based on my
experience with the company, it cannot survive large staff defections. This
statements also confirmed to me that Mr. Eng will alienate clients on a large
scale if he is given responsibility for dealing with them, which I believe is
imminent based on my communications with staff.
b. On April 26, 2019: I communicated with staff at the Evergreen Home Care
Service of NY, Inc. and was told that Evergreen Flushing New York LLC
was offering clients at Elim a $100 payment if they would agree to leave
Elim and move to the SR partnership. I was also informed that Johnny Eng
would be installed as manager at Elim that day at 1 pm. I was also informed
that the company had halted salary payments to my brother-in-law and my
husband. I believe these actions were taken to seek to intimidate me from
pursuing this legal action to protect my equity rights in the companies. I was
also informed that the company was planning to cut off my salary.
c. On April 29, 2019: Yvonne Ward drafted a letter to me a letter, attached
hereto as Exhibit 8, stating that my “employment with SR Homecare of NY,
Inc.” was “terminated” and that the company would “discuss my post-
termination relationship with SR Homecare of NY, Inc.” in the coming
weeks. In fact, I have never been an employee of SR Homecare of NY, Inc.
and the Koos have no ownership rights therein as afar as I know, but rather I
am an equity partner in the SR company that we formed, and I was paid a
salary by Evergreen Home Care Service of NY, Inc. By failing to
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acknowledge any equity interest of mine in the SR partnership, the letter
makes clear that the Koos do not recognize and will not protect this interest.
d. On April 30, 2019: Staff at the company’s office informed me that I would
receive the April 29th letter, and I did receive it via e-mail. They also
informed me that Byungki Koo had told them he would “bury me” if I sued
him. I believe that Byungki Koo is making threats against me because he
wants to intimidate me into abandoning my legal rights, knowing that in a
lawsuit the would be vindicated. See Exhibit 9 attached hereto.
e. On May 1, 2019, I learned that the Koos had cut off my ability to access the
company website with my login and password as I had regularly done in the
usual course of business. The address of the website is
sr.homecare.business.site. See Exhibit 10 attached hereto. The website does
not display a message that the login and password are being rejected, it
simply resets after they are entered. The page attached shows the result after
I correctly entered my login and password. Access was not provided. The
company website is the primary means of monitoring the status of client
business, and without this access I will not be able to properly supervise the
treatment of the clients of the Businesses. Moreover, due to this action I will
not be able to monitor attempts to divert the clients from the Businesses to
other companies in which I have no stake. I have demanded an accounting of
the client dispositions from the Koos but instead of providing it they have
moved aggressively to cut off my access to critical books and records.
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f. On May 13, 2019, Byungki Koo had a meeting with the accounting manager
at the Evergreen companies, Sung Jun Shim, and Mr. Shim’s assistant
“Adrianna.” This meeting was recorded. During the meeting, Mr. Koo told
the others: “SR Homecare donated 300 people to Elim. There wasn’t any
profit because it was a donation. We need to move all of the Korean
community from Elim and move them back to Evergreen. The Chinese
community will go to Elim. That’s why Johnny bought the stocks and
came in. Kang’s contract is done with SR Homecare. I gave Elim’s stocks
as a gift, but she is saying something about it which sounds crazy to me.”
g. On May 14, 2019, Byungki Koo’s secretary, Ms. Cho, called me and told me
that Mr. Koo was instructing me to turn over my bank account access
information for the Elim account with Woori America Bank to Mr. Eng, who
is not, as I am, a shareholder in Elim and who is not qualified to oversee its
financial transactions. I transmitted an e-mail to Ms. Cho demanding an
accounting and instructing that no action be taken in regard to my bank
account access except with appropriate corporate formalities. A copy of my
e-mail is attached hereto as Exhibit 11.
h. On May 24, 2019, I received the letter attached hereto as Exhibit 12. The
letter states that I am being “terminated” from my role at Evergreen Adult
Daycare Center. As with the prior letter, it made reference to discussing my
“post-termination relationship” with the company in the indefinite future.
The letter bans me from entering the company premises, taking any action in
regard to it and accessing any financial or other records.
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12. As stated in my Verified Complaint, The Koos have already informed me that they
plan to cut off my manager’s salary at the “Elim” business and believe my ownership share there is
“illegal,” and they have already informed me that they are in the process of seeking to shift clients
from the “SR” business to one of their “Evergreen” businesses in which I have no share.
13. As far as I know, none of the actions taken against me so far by the Koos were taken
pursuant to applicable bylaws and legal requirements, and none were taken in the best interests of
the businesses, but rather as part of an attempt by the Koos to increase their personal power and
profit form some of their businesses at my expense and at the expense of the businesses in which I
have an equity stake.
IF THE KOOS’ ACTIONS ARE NOT PREVENTED WITH AN INJUNCTION,
PLAINTIFF WILL SUFFER IRREPARABLE HARM
14. I believe that further actions described to cut off my access to clients, staff, records
and compensation above can happen at any moment and that if such action is not stayed by the
Court it may already be fully accomplished by the time the Court issue a final judgment in this
action, meaning I will suffer irreparable harm. Vital books and records will likely be destroyed and
critical financial resources will likely be placed permanently beyond the reach of the Court. The
companies will likely collapse due to alienation of staff and clients.
15. I believe, based on my observations at the business as described in my Verified
Complaint, that substantial and irreparable prejudice to me would likely occur if I am not given
protection before the final resolution of this action, and that Defendant Byungki Koo will seek
to further threaten and intimidate me and will rapidly accelerate his efforts to dissipate my
financial interests and the assets of the corporate businesses at issue before the Court could act
on the request for a permanent injunction, potentially rendering the request partly or wholly
moot.
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16. Byungki Koo has made clear to me that he imminently intends to cut off access to
corporate bank accounts for the defendant businesses that I have enjoyed in the regular course of
business, as well as cutting off my access to the client portfolios, the supervision of the clients, and
the business books and records to which I have had access in the regular course of business. He has
already taken some such actions, as specified herein and in my Verified Complaint.
17. As indicated in my Verified Complaint, Byungki Koo has already told me, in so
many words, that he would “crush” me if I took any action to protect my financial interests and
that he was moving rapidly to cut off my ownership rights and remove the client portfolios from
the businesses I share with him. These statements were laced with threats of physical
intimidation.
18. I invested my life savings, roughly $400,000, in the corporate businesses described
herein, and I cannot support myself without the income I derive from them. I would lose my home
and become a public charge if the Koos are permitted to follow through on their current activity
and strip my companies of their clients, oust my from my ownership rights and deny me my
managerial compensation.
PLAINTIFF NEEDS THE FOLLOWING RELIEF
IN THE FORM OF A PRELIMINARY INJUNCTION
19. Based on their conduct as described herein, I believe that the Koos intend to move
on to systematically and immediately cut off each of my other listed sources of income unless such
action is prevented with an injunction.
20. Specifically, the access to the Businesses which I have previously enjoyed pursuant
to my agreements with the Koos are as follows:
a. Bank accounts: I have already lost access to the primary account of the
business as specified above. This access should be restored by injunction.
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There are other bank accounts to which I may lose access at any time,
including but not limited to the Elim Home Care Agency, LLC bank account
at Woori Bank and the Evergreen Daycare Center Inc. bank account at Bank
of America.
b. Premises: I have already lost access to 37-10 149 Place, Flushing, NY,
11354, the business premises of the SR partnership, meaning that I cannot
supervise staff or access books and records. This access should be restored
by injunction. There are other business premises to which I may lose access
at any time, including but not limited to the premises of Elim Home Care
Agency, LLC, located at 41-31 163 Street in Flushing, New York, and the
premises of Evergreen Adult Daycare Center, Inc, located at 150-12
Roosevelt Avenue in Flushing, New York..
c. Books and records: I have already lost access to the company’s website,
which is critical for monitoring of client status, as well as to all books and
records on the business premises of the SR partnership. There are other
records located at the business premises of the other businesses, as indicated
in “b” above.
21. At present, the following actions have been taken to deny my access to the
Businesses: the company has blocked my access to the business website and the primary business
bank account, as well as to the books and records at the SR business premises. Upon information
and belief, the company is proceeding rapidly to cut off all other access.
22. Based on the course of conduct already exhibited by the Koos, they will continue
shutting down my access until none remains if the Court does not protect me. I have been the sole
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manager handling client and staff relations, and I believe that if I am denied access to the businesses
and not replace by a competent manager, the Businesses will collapse before the time of trial in this
action.
23. Specifically, the income I receive from the defendant businesses in the regular
course of business, which I ask the Court to preserve at status quo, regular course of business,
pending the hearing of this Order to Show Cause, is as follows:
d. A salary of $40,000 per year from EVERGREEN ADULT DAYCARE
CENTER INC.;
e. A salary of $100,000 per year relating to the partnership concerning SR
HOMECARE OF NY, INC.;
f. 10% share of profits relating to EVERGREEN ADULT DAYCARE
CENTER INC.;
g. 45% profit share relating to ELIM HOME CARE AGENCY, LLC;
h. 49% profit share relating to the partnership concerning SR HOMECARE
OF NY, INC.;
24. All of this income is provided to me pursuant to my equity ownership rights in the
three businesses. Byungki Koo should not be permitted to terminate them except in a lawful
manner pursuant to the operating agreements of the businesses in question.
25. As stated above, I cannot sustain myself without the income specified above as I
have invested my life savings in these businesses. Moreover, the actions of Byungki Koo make
clear, for the reasons specified above, that if this income is not protected he will destroy the
Businesses and render any final judgment in this matter moot, since clients and staff will be
irreparably lost.
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26. As indicated herein, the Koos have already notified me that my salary from the SR
partnership is being cut off. Based on the partnership agreement and the interests of the partnership,
this salary should not be cut off, or my duties interrupted, without good cause and appropriate
formalities. I had the obligation and the right to manage the day-to-day activities of the partnership
and to receive separate compensation for that work, and the Koos have no right to render me
voiceless in the decision as to who will run such operations.
27. By reason of the foregoing, and for reasons set forth in the accompanying Attorney
Affirmation, my application for the protection of a preliminary injunction should be
granted in its entirety.
______________________________
YANGSIL KANG
Sworn to before me this
____th day of May, 2019
_______________________
Notary Public
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뉴욕주 퀸카운티 대법원
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강양실, 개인으로서 그리고 엘림홈케어에이전시, 엘엘씨와
에버그린 어덜트 데이케어 센터 아이엔씨의 주주로서,
원고, Index No.: 707381/2019
-대-
에스알 홈케어 오브 뉴욕, 아이엔씨,
에버그린 어덜트 데이 케어 인 플러싱 아이엔씨, Hon. Frederick Sampson, J.S.C.
에버그린 어덜트 데이 케어 인 엔와이 아이엔씨
에버그린 플러싱 뉴욕 엘엘씨
에버그린 시니어 데이케어 센터 아이엔씨 원인을 보여주는 명령을
에버그린 홈케어 서비스 오브 뉴욕, 아이엔씨 뒷받침하기 위한 원고의 증명서
제임스구라고도 알려진 구병기 그리고
태미구라고도 알려진 구현정,
피고,
엘림 홈 케어 에이젼시, 엘엘씨 그리고
에버그린 어덜트 데이케어 센터 아이엔씨
명목적인 피고
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뉴욕주 )
) ss.:
퀸즈 카운티 )
강양실, 법에 따를 것을 엄숙히 맹세하며 다음과 같이 진술합니다:
1. 저는 상기된 당사자 원고입니다. 예비 금지 명령에 대한 신청을 뒷바침하는 본 진술서를
제출합니다.
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FILED: QUEENS COUNTY CLERK 05/29/2019 09:24 AM INDEX NO. 707381/2019
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 05/29/2019
2. 여기에 언급 된 내용은 본인의 개인적인 지식을 기반으로 하여, 여기에 나와있는 모든
관련 사실, 상황 및 절차를 개인적으로 인식하고 있습니다. 본인이 작성한 진술이 고의적으로 거짓이라면,
나는 처벌의 대상이 된다는 것을 알고 있습니다.
3. 저는 피고인 구병기 및/또는 구현종이 (이하 “구씨들”) 공동 소유하고 있는 3개 사업 (이하
“사업”) 의 지분 파트너 또는 법인 주주입니다
Preview
FILED: QUEENS COUNTY CLERK 05/29/2019 09:24 AM INDEX NO. 707381/2019 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 05/29/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ---------------------------------------------------------------------X YANGSIL KANG, individually and as a shareholder on behalf of ELIM HOME CARE AGENCY, LLC and EVERGREEN ADULT DAYCARE CENTER INC., Plaintiff, Index No.: 707381/2019 -against- SR HOMECARE OF NY, INC., EVERGREEN ADULT DAY CARE IN FLUSHING INC., EVERGREEN Hon. Frederick Sampson J.S.C.ADULT DAY CARE IN NY INC., EVERGREEN FLUSHING NEW YORK LLC, EVERGREEN SENIOR AFFIDAVIT OF DAYCARE CENTER INC., EVERGREEN PLAINTIFF IN HOMECARE SERVICE OF NY, INC., SUPPORT OF ORDER BYUNGKI KOO a/k/a JAMES KOO and TO SHOW CAUSE HYUNJONG KOO a/k/a TAMMY KOO, Defendants ELIM HOME CARE AGENCY, LLC and EVERGREEN ADULT DAYCARE CENTER INC., Nominal Defendants. ---------------------------------------------------------------------X STATE OF NEW YORK ) ) ss.: COUNTY OF QUEENS ) YANGSIL KANG, being duly sworn, deposes and says: 1. I am a plaintiff in the above-entitled action. I submit this Affidavit in support of my application for a preliminary injunction. 2. The statements made herein are based upon my personal knowledge, and I am personally familiar with all the relevant facts, circumstances and proceedings herein. I am aware that if any statements made herein are willfully false, I am subject to punishment. 1 of 33 FILED: QUEENS COUNTY CLERK 05/29/2019 09:24 AM INDEX NO. 707381/2019 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 05/29/2019 3. I am an equity partner or corporate shareholder in three businesses (the “Businesses”) co-owned by Defendants Byungki Koo and/or Hyunjong Koo (“the Koos”). a. Attached hereto as Exhibit “1” is the partnership agreement relating to SR Homecare of NY, Inc. and reflecting my equity in the partnership. I invested $150,000 in this business (the “SR” partnership). b. Attached hereto as Exhibit “2” is documentation of my ownership interest in Elim Home Care Agency, LLC. c. Attached as Exhibit “3” is documentation of my ownership interest in Evergreen Adult Daycare, Inc., which was subsequently transferred to Evergreen Adult Daycare Center, Inc. As indicated on the documentation, I made a $250,000 investment in the business ($175,000 with two checks, copies of which are included and $75,000 in cash). 4. At present, all of my business interests in these companies are under siege from the Koos. Detailed below are the aggressive actions they have taken to destroy my interests in the companies. They have shut off my access to bank accounts, they have issued notices barring me from the business premises, and most importantly they have sought to remove clients from the businesses and transfer them to other businesses in which I have no interest. The Businesses cannot sustain themselves 5. Money damages will not be sufficient to compensate me for the harm I am currently facing for the following reasons: a. The record shows that the Koos are engaged in fraud, and that the assets of the company are likely to be dissipated and disbursed beyond recovery by the time of trial if an injunction is not granted. -2- 2 of 33 FILED: QUEENS COUNTY CLERK 05/29/2019 09:24 AM INDEX NO. 707381/2019 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 05/29/2019 b. I am unable to care for myself financially without my income from the businesses. c. Clients of the business will be alienated because the proposed replacement manager is not qualified to deal with them, in fact cannot even speak to them in their language. Once the clients leave the business, they will not be recoverable and the business will not be able to sustain itself. d. Based on my personal observations and knowledge, the proposed replacement managers of the business lacks any credentials to carry out financial functions, which will impair the survival of the business. It will be impossible for the proposed replacements to preserve the financial status quo of the businesses since, based on my personal observations, Mr. Koo is unable to carry out these functions himself.. 6. As stated in my Verified Complaint in this matter, based on information I have recently learned the Koos are currently maneuvering to oust me from my ownership interests in the corporate businesses named herein, and doing so in a way that will likely lead to the waste and dissolution of those businesses, violating both my interests and those of the corporate entities themselves. See discussion below. I depend on the viability of these businesses for my livelihood, and will likely become a public charge if they are not immediately protected. THE KOOS ARE ENGAGED IN A PATTERN OF FRAUD 7. As explained in my Verified Complaint, the Koos are currently being sued in Queens Supreme Court for ousting other former corporate business partners from their rightful shares in the “SR” business entity which was then passed on unbeknownst to me. The Koos have never provided me with any information about this lawsuit, I learned about it only through my own -3- 3 of 33 FILED: QUEENS COUNTY CLERK 05/29/2019 09:24 AM INDEX NO. 707381/2019 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 05/29/2019 recent investigation. This gives me even more concern that I am about to watch all my corporate assets in the Businesses go up in smoke. I will never be able to recover these assets once they are lost because the Koos are engaged in a pattern of fraud and will likely conceal and dissipate such assets and because once alienated from the business by improper management the clients will not be recoverable. THE KOOS ARE THREATENING TO IMMINENTLY DESTROY ELIM HOMECARE AGENCY, LLC AND THE SR PARTNERSHIP 8. My most immediate concern is for the assets of the partnership related to SR Homecare of NY, Inc. and the corporation Elim Home Care Agency, LLC., but I believe that all my financial interests related to all the defendants are currently in direct and immediate jeopardy. 9. In regard to these two businesses, I have two main concerns: a. First, as stated in my Verified Pleading, my observations in the workplace have led me to conclude that the Koos are currently working to divert all the clients from these businesses to other corporate entities without compensating me or the Elim entity. These clients are the primary assets of the companies. The businesses cannot survive without them. Attached hereto as Exhibit “4” is a letter dated February 15, 2019, from the New York Department of Health which discusses a “closure plan” as to which I have never been advised or consulted. This letter confirms my observations that the Koos plan to divert the SR partnership’s clients and shut it down. Attached hereto as Exhibit “5” is a letter dated April 10, 2019, from the New York Department of Health to SR Homecare of NY, Inc. issuing a cease and desist order due to failure to file required registration statements. The Koos excluded me from any role or responsibility in filing these statements, and never informed me about the lack of a filing or the receipt of the cease and desist order. This correspondence is further proof that the Koos are seeking to erase my financial interests in the -4- 4 of 33 FILED: QUEENS COUNTY CLERK 05/29/2019 09:24 AM INDEX NO. 707381/2019 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 05/29/2019 businesses and destroy the assets of the entities with which I am connected. I only learned about these two letters in the past few days as I began investigating the actions of the Koos. b. Second, as stated in my Verified Pleading, my observations in the workplace further underscore that the Koos are currently working to replace me as the operating officer in charge of client development and client relations. I have spent more than four years building the client books of the various corporate businesses named herein, vastly expanding them from what I found when I took them over. The individuals who the Koos are turning towards in order to take over these duties, as far as I know, have no qualifications to manage such clients, much less to grow the market share. If I am not protected with a preliminary injunction and am ousted as the manager, the clients will leave our business and find homes elsewhere, and that it will be virtually impossible to bring them back once my (and the corporate) ownership rights are confirmed during the course of this litigation. i. In regard to the SR partnership, the letter attached hereto as Exhibit 4 is addressed to Yvonne Ward, referring to her as the “Administrator” of SR Home Care of N.Y., Inc. This indicates that the Koos are planning to replace me with Ms. Ward, who I know to be a person lacking the necessary credentials to maintain the client base of the businesses. The letter attached as Exhibit 5 is not addressed to a specific person, and upon information and belief based on my observations in the workplace all such correspondence is being diverted to Ms. Ward and then to the Koos. The following are the reasons why I believe that Ms. Ward is incapable of maintaining the status quo of the SR partnership without my presence: -5- 5 of 33 FILED: QUEENS COUNTY CLERK 05/29/2019 09:24 AM INDEX NO. 707381/2019 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 05/29/2019 1. Ms. Ward does not communicate in Korean, but most of the clients and most of the staff of the business rely on Korean to communicate. As such, she cannot effectively communicate at all within the business. Attached hereto as Exhibit 6 is a copy of a text message from a client named Mr. In Bok Bae, who is complaining about poor quality of service due to inability to communicate with key staff in Korean, together with a certified translation of the message. 2. Ms. Ward has no training or experience in billing or payroll. She cannot read balance sheets or oversee financial records to make sure that the company’s financial interests are protected. As stated in my Verified Complaint, while I had no authority to set wage rates or amounts paid to employees for overtime, since all such decisions were made by the Koos, I was responsible for overseeing technical processes of the billing of clients and the payment of employees, vital functions of the business which must be handled by a competent manager. ii. In regard to Elim Home Care Agency, LLC, I have been informed by staff that Mr. Johnny Eng has been hired, without my knowledge or consent, to manage the business. The following are the reasons why I believe that Mr. Eng is incapable of maintaining the status quo of the SR partnership without my presence: -6- 6 of 33 FILED: QUEENS COUNTY CLERK 05/29/2019 09:24 AM INDEX NO. 707381/2019 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 05/29/2019 1. Mr. Eng does not communicate in Korean, but most of the clients and most of the staff of the business rely on Korean to communicate. As such, he cannot effectively communicate at all within the business. Attached hereto as Exhibit 6 is a copy of a text message from a client named Mr. In Bok Bae, who is complaining about poor quality of service due to inability to communicate with key staff in Korean, together with a certified translation of the message. 2. Mr. Eng has no training or experience in billing or payroll. He cannot read balance sheets or oversee financial records to make sure that the company’s financial interests are protected. As stated in my Verified Complaint, while I had no authority to set wage rates or amounts paid to employees for overtime, since all such decisions were made by the Koos, I was responsible for overseeing technical processes of the billing of clients and the payment of employees, vital functions of the business which must be handled by a competent manager. 10. Based on the information available to me from my observations in the premises of the defendants and my communications with the Koos and other staff of the Businesses, the Koos are currently in the process of secretly shifting the corporate assets, chiefly the client books of business, of the “SR” and “Elim” businesses to other corporate defendants herein or elsewhere, and -7- 7 of 33 FILED: QUEENS COUNTY CLERK 05/29/2019 09:24 AM INDEX NO. 707381/2019 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 05/29/2019 that they imminently plan to close off access to all the businesses, and that they are doing the same in regard to all my other business interests with which they are connected. 11. Within the past few weeks, the Koos have taken the following aggressive actions to wipe out my financial stakes in these companies and severely undermine their viability: a. On April 25, 2019, the Koos cut off my access to bank account of Evergreen Home Care Service of NY, Inc., which controlled the operating budget of the SR partnership. See Exhibit 7 attached hereto. The account was provided by Bank of America. The consequences of this action are that I became unable to verify payments on behalf of SR partnership clients by their insurance companies to the SR partnership. I am the only one associated with the SR partnership who is competent and qualified to audit these payments, and the SR partnership will likely lose substantial revenues due to the Koos action. Byungki Koo cannot audit these financial records, this is one of the reasons he formed a partnership with me, so that I could manage such responsibilities. Moreover, this action makes it impossible for me to obtain an accounting of the partnership revenues, which I have demanded from the Koos, and makes it possible for them to dissipate SR partnership revenues without my knowledge. When I contacted staff at the Evergreen Home Care Service of NY, Inc. offices to inquire about this action, I was told that Byungki Koo had ordered the bank to terminate my access, that Johnny Eng was “not stable” and “threatening” and was not carrying out his duties in an effective manner, and that “Mr. Koo does not care about the company or the employees.” It was made clear to me by staff that they will -8- 8 of 33 FILED: QUEENS COUNTY CLERK 05/29/2019 09:24 AM INDEX NO. 707381/2019 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 05/29/2019 not continue with the company under such circumstances. Based on my experience with the company, it cannot survive large staff defections. This statements also confirmed to me that Mr. Eng will alienate clients on a large scale if he is given responsibility for dealing with them, which I believe is imminent based on my communications with staff. b. On April 26, 2019: I communicated with staff at the Evergreen Home Care Service of NY, Inc. and was told that Evergreen Flushing New York LLC was offering clients at Elim a $100 payment if they would agree to leave Elim and move to the SR partnership. I was also informed that Johnny Eng would be installed as manager at Elim that day at 1 pm. I was also informed that the company had halted salary payments to my brother-in-law and my husband. I believe these actions were taken to seek to intimidate me from pursuing this legal action to protect my equity rights in the companies. I was also informed that the company was planning to cut off my salary. c. On April 29, 2019: Yvonne Ward drafted a letter to me a letter, attached hereto as Exhibit 8, stating that my “employment with SR Homecare of NY, Inc.” was “terminated” and that the company would “discuss my post- termination relationship with SR Homecare of NY, Inc.” in the coming weeks. In fact, I have never been an employee of SR Homecare of NY, Inc. and the Koos have no ownership rights therein as afar as I know, but rather I am an equity partner in the SR company that we formed, and I was paid a salary by Evergreen Home Care Service of NY, Inc. By failing to -9- 9 of 33 FILED: QUEENS COUNTY CLERK 05/29/2019 09:24 AM INDEX NO. 707381/2019 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 05/29/2019 acknowledge any equity interest of mine in the SR partnership, the letter makes clear that the Koos do not recognize and will not protect this interest. d. On April 30, 2019: Staff at the company’s office informed me that I would receive the April 29th letter, and I did receive it via e-mail. They also informed me that Byungki Koo had told them he would “bury me” if I sued him. I believe that Byungki Koo is making threats against me because he wants to intimidate me into abandoning my legal rights, knowing that in a lawsuit the would be vindicated. See Exhibit 9 attached hereto. e. On May 1, 2019, I learned that the Koos had cut off my ability to access the company website with my login and password as I had regularly done in the usual course of business. The address of the website is sr.homecare.business.site. See Exhibit 10 attached hereto. The website does not display a message that the login and password are being rejected, it simply resets after they are entered. The page attached shows the result after I correctly entered my login and password. Access was not provided. The company website is the primary means of monitoring the status of client business, and without this access I will not be able to properly supervise the treatment of the clients of the Businesses. Moreover, due to this action I will not be able to monitor attempts to divert the clients from the Businesses to other companies in which I have no stake. I have demanded an accounting of the client dispositions from the Koos but instead of providing it they have moved aggressively to cut off my access to critical books and records. -10- 10 of 33 FILED: QUEENS COUNTY CLERK 05/29/2019 09:24 AM INDEX NO. 707381/2019 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 05/29/2019 f. On May 13, 2019, Byungki Koo had a meeting with the accounting manager at the Evergreen companies, Sung Jun Shim, and Mr. Shim’s assistant “Adrianna.” This meeting was recorded. During the meeting, Mr. Koo told the others: “SR Homecare donated 300 people to Elim. There wasn’t any profit because it was a donation. We need to move all of the Korean community from Elim and move them back to Evergreen. The Chinese community will go to Elim. That’s why Johnny bought the stocks and came in. Kang’s contract is done with SR Homecare. I gave Elim’s stocks as a gift, but she is saying something about it which sounds crazy to me.” g. On May 14, 2019, Byungki Koo’s secretary, Ms. Cho, called me and told me that Mr. Koo was instructing me to turn over my bank account access information for the Elim account with Woori America Bank to Mr. Eng, who is not, as I am, a shareholder in Elim and who is not qualified to oversee its financial transactions. I transmitted an e-mail to Ms. Cho demanding an accounting and instructing that no action be taken in regard to my bank account access except with appropriate corporate formalities. A copy of my e-mail is attached hereto as Exhibit 11. h. On May 24, 2019, I received the letter attached hereto as Exhibit 12. The letter states that I am being “terminated” from my role at Evergreen Adult Daycare Center. As with the prior letter, it made reference to discussing my “post-termination relationship” with the company in the indefinite future. The letter bans me from entering the company premises, taking any action in regard to it and accessing any financial or other records. -11- 11 of 33 FILED: QUEENS COUNTY CLERK 05/29/2019 09:24 AM INDEX NO. 707381/2019 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 05/29/2019 12. As stated in my Verified Complaint, The Koos have already informed me that they plan to cut off my manager’s salary at the “Elim” business and believe my ownership share there is “illegal,” and they have already informed me that they are in the process of seeking to shift clients from the “SR” business to one of their “Evergreen” businesses in which I have no share. 13. As far as I know, none of the actions taken against me so far by the Koos were taken pursuant to applicable bylaws and legal requirements, and none were taken in the best interests of the businesses, but rather as part of an attempt by the Koos to increase their personal power and profit form some of their businesses at my expense and at the expense of the businesses in which I have an equity stake. IF THE KOOS’ ACTIONS ARE NOT PREVENTED WITH AN INJUNCTION, PLAINTIFF WILL SUFFER IRREPARABLE HARM 14. I believe that further actions described to cut off my access to clients, staff, records and compensation above can happen at any moment and that if such action is not stayed by the Court it may already be fully accomplished by the time the Court issue a final judgment in this action, meaning I will suffer irreparable harm. Vital books and records will likely be destroyed and critical financial resources will likely be placed permanently beyond the reach of the Court. The companies will likely collapse due to alienation of staff and clients. 15. I believe, based on my observations at the business as described in my Verified Complaint, that substantial and irreparable prejudice to me would likely occur if I am not given protection before the final resolution of this action, and that Defendant Byungki Koo will seek to further threaten and intimidate me and will rapidly accelerate his efforts to dissipate my financial interests and the assets of the corporate businesses at issue before the Court could act on the request for a permanent injunction, potentially rendering the request partly or wholly moot. -12- 12 of 33 FILED: QUEENS COUNTY CLERK 05/29/2019 09:24 AM INDEX NO. 707381/2019 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 05/29/2019 16. Byungki Koo has made clear to me that he imminently intends to cut off access to corporate bank accounts for the defendant businesses that I have enjoyed in the regular course of business, as well as cutting off my access to the client portfolios, the supervision of the clients, and the business books and records to which I have had access in the regular course of business. He has already taken some such actions, as specified herein and in my Verified Complaint. 17. As indicated in my Verified Complaint, Byungki Koo has already told me, in so many words, that he would “crush” me if I took any action to protect my financial interests and that he was moving rapidly to cut off my ownership rights and remove the client portfolios from the businesses I share with him. These statements were laced with threats of physical intimidation. 18. I invested my life savings, roughly $400,000, in the corporate businesses described herein, and I cannot support myself without the income I derive from them. I would lose my home and become a public charge if the Koos are permitted to follow through on their current activity and strip my companies of their clients, oust my from my ownership rights and deny me my managerial compensation. PLAINTIFF NEEDS THE FOLLOWING RELIEF IN THE FORM OF A PRELIMINARY INJUNCTION 19. Based on their conduct as described herein, I believe that the Koos intend to move on to systematically and immediately cut off each of my other listed sources of income unless such action is prevented with an injunction. 20. Specifically, the access to the Businesses which I have previously enjoyed pursuant to my agreements with the Koos are as follows: a. Bank accounts: I have already lost access to the primary account of the business as specified above. This access should be restored by injunction. -13- 13 of 33 FILED: QUEENS COUNTY CLERK 05/29/2019 09:24 AM INDEX NO. 707381/2019 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 05/29/2019 There are other bank accounts to which I may lose access at any time, including but not limited to the Elim Home Care Agency, LLC bank account at Woori Bank and the Evergreen Daycare Center Inc. bank account at Bank of America. b. Premises: I have already lost access to 37-10 149 Place, Flushing, NY, 11354, the business premises of the SR partnership, meaning that I cannot supervise staff or access books and records. This access should be restored by injunction. There are other business premises to which I may lose access at any time, including but not limited to the premises of Elim Home Care Agency, LLC, located at 41-31 163 Street in Flushing, New York, and the premises of Evergreen Adult Daycare Center, Inc, located at 150-12 Roosevelt Avenue in Flushing, New York.. c. Books and records: I have already lost access to the company’s website, which is critical for monitoring of client status, as well as to all books and records on the business premises of the SR partnership. There are other records located at the business premises of the other businesses, as indicated in “b” above. 21. At present, the following actions have been taken to deny my access to the Businesses: the company has blocked my access to the business website and the primary business bank account, as well as to the books and records at the SR business premises. Upon information and belief, the company is proceeding rapidly to cut off all other access. 22. Based on the course of conduct already exhibited by the Koos, they will continue shutting down my access until none remains if the Court does not protect me. I have been the sole -14- 14 of 33 FILED: QUEENS COUNTY CLERK 05/29/2019 09:24 AM INDEX NO. 707381/2019 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 05/29/2019 manager handling client and staff relations, and I believe that if I am denied access to the businesses and not replace by a competent manager, the Businesses will collapse before the time of trial in this action. 23. Specifically, the income I receive from the defendant businesses in the regular course of business, which I ask the Court to preserve at status quo, regular course of business, pending the hearing of this Order to Show Cause, is as follows: d. A salary of $40,000 per year from EVERGREEN ADULT DAYCARE CENTER INC.; e. A salary of $100,000 per year relating to the partnership concerning SR HOMECARE OF NY, INC.; f. 10% share of profits relating to EVERGREEN ADULT DAYCARE CENTER INC.; g. 45% profit share relating to ELIM HOME CARE AGENCY, LLC; h. 49% profit share relating to the partnership concerning SR HOMECARE OF NY, INC.; 24. All of this income is provided to me pursuant to my equity ownership rights in the three businesses. Byungki Koo should not be permitted to terminate them except in a lawful manner pursuant to the operating agreements of the businesses in question. 25. As stated above, I cannot sustain myself without the income specified above as I have invested my life savings in these businesses. Moreover, the actions of Byungki Koo make clear, for the reasons specified above, that if this income is not protected he will destroy the Businesses and render any final judgment in this matter moot, since clients and staff will be irreparably lost. -15- 15 of 33 FILED: QUEENS COUNTY CLERK 05/29/2019 09:24 AM INDEX NO. 707381/2019 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 05/29/2019 26. As indicated herein, the Koos have already notified me that my salary from the SR partnership is being cut off. Based on the partnership agreement and the interests of the partnership, this salary should not be cut off, or my duties interrupted, without good cause and appropriate formalities. I had the obligation and the right to manage the day-to-day activities of the partnership and to receive separate compensation for that work, and the Koos have no right to render me voiceless in the decision as to who will run such operations. 27. By reason of the foregoing, and for reasons set forth in the accompanying Attorney Affirmation, my application for the protection of a preliminary injunction should be granted in its entirety. ______________________________ YANGSIL KANG Sworn to before me this ____th day of May, 2019 _______________________ Notary Public -16- 16 of 33 FILED: QUEENS COUNTY CLERK 05/29/2019 09:24 AM INDEX NO. 707381/2019 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 05/29/2019 뉴욕주 퀸카운티 대법원 ---------------------------------------------------------------------X 강양실, 개인으로서 그리고 엘림홈케어에이전시, 엘엘씨와 에버그린 어덜트 데이케어 센터 아이엔씨의 주주로서, 원고, Index No.: 707381/2019 -대- 에스알 홈케어 오브 뉴욕, 아이엔씨, 에버그린 어덜트 데이 케어 인 플러싱 아이엔씨, Hon. Frederick Sampson, J.S.C. 에버그린 어덜트 데이 케어 인 엔와이 아이엔씨 에버그린 플러싱 뉴욕 엘엘씨 에버그린 시니어 데이케어 센터 아이엔씨 원인을 보여주는 명령을 에버그린 홈케어 서비스 오브 뉴욕, 아이엔씨 뒷받침하기 위한 원고의 증명서 제임스구라고도 알려진 구병기 그리고 태미구라고도 알려진 구현정, 피고, 엘림 홈 케어 에이젼시, 엘엘씨 그리고 에버그린 어덜트 데이케어 센터 아이엔씨 명목적인 피고 ---------------------------------------------------------------------X 뉴욕주 ) ) ss.: 퀸즈 카운티 ) 강양실, 법에 따를 것을 엄숙히 맹세하며 다음과 같이 진술합니다: 1. 저는 상기된 당사자 원고입니다. 예비 금지 명령에 대한 신청을 뒷바침하는 본 진술서를 제출합니다. 17 of 33 FILED: QUEENS COUNTY CLERK 05/29/2019 09:24 AM INDEX NO. 707381/2019 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 05/29/2019 2. 여기에 언급 된 내용은 본인의 개인적인 지식을 기반으로 하여, 여기에 나와있는 모든 관련 사실, 상황 및 절차를 개인적으로 인식하고 있습니다. 본인이 작성한 진술이 고의적으로 거짓이라면, 나는 처벌의 대상이 된다는 것을 알고 있습니다. 3. 저는 피고인 구병기 및/또는 구현종이 (이하 “구씨들”) 공동 소유하고 있는 3개 사업 (이하 “사업”) 의 지분 파트너 또는 법인 주주입니다