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FILED: QUEENS COUNTY CLERK 08/29/2019 04:49 PM INDEX NO. 707381/2019
NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 08/29/2019
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 Index No.: 707381/2019
EVERGREEN ADULT DAYCARE CENTER, INC.,
AFFIRMATION IN
Plaintiffs, OPPOSITION TO ORDER
TO SHOW CAUSE
-against-
EVERGREEN ADULT DAY CARE IN FLUSHING
INC., EVERGREEN ADULT DAY CARE IN NY INC.,
EVERGREEN ADULT DAYCARE CENTER INC.,
EVERGREEN FLUSHING NEW YORK LLC,
EVERGREEN SENIOR DAYCARE CENTER INC.,
EVERGREEN HOMECARE SERVICE OF NY, INC.,
BYUNGKI KOO a/k/a JAMES KOO, and HYUNGJONG
KOO a/k/a TOMMY KOO,
Defendants.
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Andrew D. Grossman, an attorney duly licensed to practice law before the courts of the
State of New York, affirms the truth of the following under the penalty of perjury:
1. I am an attorney with the law firm of Rha & Kim, LLP, attorneys for the
Defendants (excluding Hyungjong Koo, who has not yet been served) in this action.
2. The bases for my knowledge as stated below are my conversations with the
business principals, a review of the paper records, and the proceedings had to date in this case.
I. Factual Background
A. SR Homecare of NY, Inc.
3. SR Homecare of NY, Inc. (which is not a party to this action) was a company
providing home health care services to the elderly. From January 1, 2015 through March 15,
2019, the business was run under management and consulting agreements with Evergreen
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Homecare Service of NY, Inc. A true and correct copy of those agreements is attached hereto as
Exhibit A.
4. As the name suggests, SR Homecare of NY, Inc. is not a partnership, as alleged
by Plaintiff; it was a corporation owned by Susan Rabinowitz, a non-party.
5. During the period of that consulting and management agreement, Evergreen
Homecare Service of NY, Inc. was in the process of acquiring the assets of SR Homecare of NY,
Inc. The reason that process took several years was due to the heavy regulation of the industry—
the purchase and closure plan had to be approved by the New York State Department of
Health—and due to a dispute with the attorney for the sellers, which required arbitration to
resolve.
6. Plaintiff Yangsil Kang, who was employed by SR Homecare of NY, Inc., was
intimately familiar with the consulting and management agreements, and the process of
transitioning that business to Evergreen Homecare Services of NY, Inc.
7. Pursuant to the consulting and management agreement, Evergreen Homecare
Services of NY, Inc. had the right to receive profits from the operation of SR Homecare of NY,
Inc. during the consulting and management period.
8. In May 2016, Plaintiff Yangsil Kang entered into a written agreement with
Hyunjong Koo, under which Ms. Koo, the owner of Evergreen Homecare Services of NY, Inc.,
recited her entitlement to profits from SR Homecare of NY, Inc., and promised to pay Ms. Kang
49% of those profits in exchange for an up-front payment of $150,000.
9. Over the course of the next nearly three years, Ms. Kang was in fact paid her
share of the profits, and made back her investment several times over. She was more than
adequately compensated for her investment.
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10. In March 2019, in keeping with the long-planned transition, SR Homecare of NY,
Inc. stopped operations. Neither Ms. Kang nor Ms. Koo have received any profits from Sr.
Homecare since that time. Pursuant to the closure plan, patients were primarily transitioned to
Evergreen Homecare Service of NY, Inc. A true and correct copy of the closure approval letter
from the New York State Department of Health is attached hereto as Exhibit B.
11. To be clear, following the acceptance of the closure plan, SR Homecare of NY,
Inc. is no longer operating, and is no longer authorized by the State of New York to accept or
service clients. To the extent Plaintiff’s claim implicitly seeks to restore her position to SR
Homecare of NY, Inc., or restore the patients to SR Homecare of NY, Inc., such remedies are not
consistent with state law.
B. Elim Home Care Agency, LLC
12. On June 17, 2017, the owner of Elim Home Care Agency LLC, Seung Ryun Choi,
signed a purchase agreement to sell the business to Daniel Park. At the time of the contract, Elim
was not doing business; its assets comprised a license from the State of New York to provide
home health care services. A true and correct copy of the purchase agreement is attached hereto
as Exhibit C.
13. As Elim Home Care Agency LLC operates in the home health care sector, state
approval is required for such a transfer, and so a management agreement was signed making
Daniel Park the manager of the agency pending approval of the sale. A true and correct copy of
the management agreement is attached hereto as Exhibit D. A true and correct copy of the letter
from the New York State Department of Health approving the management agreement is
attached as Exhibit E.
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14. On or about February 22, 2018, Elim attempted to secure approval for the change
in ownership to Daniel Park. However, due to a moratorium on such transfers, the effort was
unsuccessful, and the ownership change was rejected. A true and correct copy of the letter from
the state rejecting the transfer is attached as Exhibit F.
15. While the ownership is still in the hands of Seung Ryun Choi, Daniel Park has
been the manager since that time, and Elim has been steadily increasing its clientele, growing
from 0 clients in 2017, to 53 clients in 2018, and today has more than 409 clients. (See Ward
Affidavit, Par. 16).
16. Due to the state moratorium, the Plaintiff herein has no interest in Elim, as (1)
such ownership changes must be approved by the state, and (2) the person Petitioner claims
ownership rights from, Daniel Park, is not himself an owner, his application for a change in
ownership having been rejected by the state.
17. Consequently, Plaintiff has no standing to seek relief as an owner of Elim, as she
cannot establish that she is an owner. In fact, the documents plainly and indisputably show that
she is not an owner of that agency.
C. Evergreen Adult Daycare Center Inc.
18. Though the names of the two entities are similar, it is important to note that
Evergreen Adult Daycare Center Inc. operates in a completely different industry Evergreen
Home Care Agency LLC and Elim Home Care Agency LLC: it is an adult daycare center, a
physical location that provides supervision, programs, and enrichment for senior citizens. It is
fundamentally different from a home care service, in which home health aides come to the
client’s home and provide services there. The only common nexus—apart from the use of
“Evergreen” in the name—is that the services of both industries are tailored towards seniors.
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19. The complaints raised by Petitioner in the moving papers are almost exclusively
related to the home health care industry, not the adult daycare industry. In other words, they have
nothing to do with Evergreen Adult Daycare Center Inc.
20. The only specific grievance Petitioner raises is that she was terminated from
Evergreen Adult Daycare Center Inc., and lost access to the company’s bank account as part of
that termination. She is asking to be restored to her position and salary at this company.
21. However, Petitioner has not provided any grounds for the relief she is seeking.
She provides no written contract giving her the right to a job at the daycare business, nor can she:
she was an at-will employee.
22. It is the Petitioner’s burden to show her entitlement to relief, and as it relates to
the daycare business, she has shown nothing to suggest (1) that she is entitled to a position from
which she was ousted, or (2) that there are misdeeds related to the business that merit judicial
intervention. In short, she cannot show a likelihood of success on the merits, because she has not
even stated a claim for which relief can be granted.
II. Plaintiff’s foreign-language affidavits have not been properly submitted to the
Court, and must be disregarded, leaving this motion without any factual support.
23. “Each paper served or filed shall be in the English language which, where
practicable, shall be of ordinary usage. Where an affidavit or exhibit annexed to a paper served
or filed is in a foreign language, it shall be accompanied by an English translation and an
affidavit by the translator stating his qualifications and that the translation is accurate” CPLR
2101(b).
24. Here, in support of its motion, Plaintiff attaches numerous affidavits, including
her own, which are in the Korean language. In fact, several of the purported witnesses explain
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that they do not speak English. However, the only certification by a translator is facially
defective for two reasons.
25. First, it does not identify the documents that were translated, except by reference
to what appear to be file names, none of which correspond to the documents submitted in support
of the motion.
26. Second, the certification does not state that the translation is accurate, or even that
a translation was done: it merely recites that “I was able to translate” the list of apparent file
names.
27. For those reasons, the Korean language affidavit submitted by Plaintiff and her
purported witnesses should be disregarded, as they have not been properly put before the Court
pursuant to CPLR 2101(b).
28. Those defective affidavits seek to authenticate all of the exhibits presented in
support of the motion. As the affidavits cannot be considered, a fortiori, neither can the exhibits.
As a result, Plaintiff is left with no evidence of any kind in support of her position, and cannot
prevail on her submission. This alone requires the Court to deny the motion in its entirety. The
balance of my affirmation will present alternative, concurrent reasons for such a denial, as the
motion lacks substantive merit, but the Court’s inquiry should stop here: as there is no evidence
in support of the motion, it must be denied.
III. Plaintiff lacks standing to bring any derivative claims on behalf of Elim Home Care
Agency, LLC or Evergreen Adult Daycare Center, Inc.
29. “A cause of action for wrong done to the corporation belongs to the
corporation…the question whether the corporation should seek to enforce in the courts a cause of
action for damage is, like other business questions, ordinarily a matter of internal management
and is left to the discretion of the directors, in the absence of instruction by vote of the
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stockholders.” Koran v. Savory, Inc., 276 N.Y. 215, 217 (Ct. App. 1937)(internal citations
omitted).
30. In a shareholder derivative action, “the complaint shall set forth with particularity
the efforts of the plaintiff to secure the initiation of such action by the board or the reasons for
not making such effort.” NY Bus. Corp. Law § 626.
31. The demand requirement rests on “basic principles of corporate control—that the
management of the corporation is entrusted to its board of directors, who have primary
responsibility for acting in the name of the corporation and who are often in a position to correct
alleged abuses without resort to the courts.” Bansbach v. Zinn, 1 N.Y.3d, 1, 8-9 (Ct. App. 2003).
32. In the instant case, Plaintiff has failed to allege that any such demands were made,
or that any such demands would be futile. Her moving papers, along with her complaint, are
devoid of any information as to who comprise the board of directors for Elim Home Care
Agency, LLC or Evergreen Adult Daycare Center Inc., nor does she “set forth with particularity”
any efforts she made to have the corporation pursue legal action against the alleged tortfeasors.
33. While a demand on the board may be excused in cases of futility, in order to
justify the failure to make a demand, “it is not sufficient to name a majority of the directors as
defendants with conclusory allegations of wrongdoing or control by wrongdoers.” Taylor v.
Wynkoop, 132 A.D.3d 843 (NY App. 2nd Div. 2015).
34. It is the Plaintiff’s burden, both to allege in her pleadings, and in the case where
she seeks injunctive relief, to show clear and convincing evidence that she has either made a
demand upon the directors, or that such a demand would be futile. The Plaintiff here doesn’t
even tell us who those directors are, nor does she articulate any efforts made to persuade the
companies to initiate a lawsuit, nor does she provide a reason why such an attempt would be
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futile. Simply put, Plaintiff has not even made an attempt at sustaining her burden to show that
she has standing to act on behalf of the corporation, and to the extent her Order to Show Cause
seeks relief on behalf of the corporate defendants, it must be denied.
35. What is plain is that, from the paper presented in opposition, Plaintiff does not
have any ownership interest in Elim. She purports to have received shares from Daniel Park, but
Mr. Park’s application for a change in ownership was rejected by the state. The current owner of
Elim Home Care Agency Inc. is Seung Ryun Choi; Plaintiff has no ownership interest, and thus
no standing, to pursue the instant matter as a derivative action.
36. With regards to Evergreen Adult Daycare Center Inc., Plaintiff has provided no
grounds of any kind to show what wrongdoing she is complaining of, other than her displeasure
at being terminated from her employment. As an at-will employee, she had no right to a job, and
has articulated no basis that would give her standing to bring a derivative action on the
company’s behalf.
37. In addition, Plaintiff’s claim that she is an owner of Evergreen Adult Daycare
Center Inc. is supported by a shareholders agreement, but one for a different company,
Evergreen Senior Service Inc. No explanation is given as to why that agreement should entitle
her to shares of Evergreen Adult Daycare Center. She then presents two checks made out to
different companies entirely (Evergreen Senior Service Inc. and All Boro Evergreen Adult Day
Care), and shareholders agreements between herself and Yang Lim Kang, who on information
and belief is her husband.
38. Her defective affidavit, however, describes that exhibit as “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
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investment in the business.” The exhibit does not match her description of it; even if it were
properly before the Court, it does not support her position.
39. Again, no explanation is given for the discrepancy between how she describes the
documents, and what the documents say. As it is Plaintiff’s burden to show that she is a
shareholder entitled to relief, her effort to do so here is deficient, and her claim must be
dismissed.
IV. Plaintiff has provided no basis for a restraining order against the Defendants.
40. In order to prevail on a motion for injunctive relief, a movant must show (1) a
likelihood of ultimate success on the merits; (2) the prospect of irreparable injury if the
provisional relief is withheld; and (3) a balance of equities tipping in the moving party’s favor.
XXXX, L.P. v. 363 Prospect Place, LLC, 153 A.D.3d 588 (2nd Dep’t 2017). Each element must
be shown by clear and convincing evidence. Hui v. New Clients, Inc., 126 A.D.3d 759 (2nd Dep’t
2015).
A. Likelihood of ultimate success on the merits
41. As a preliminary matter, Plaintiff is seeking this relief against “Defendants,” most
of whom are not alleged, let alone shown by clear and convincing evidence, to have any nexus
whatsoever to Elim Home Care Agency, LLC or Evergreen Adult Daycare Center, Inc.
42. Moreover, the relief requested includes an injunction against contacting or
soliciting clients of “the SR partnership,” which is not defined. If Plaintiff intends to say “SR
Homecare of NY, Inc.”, then as explained above and in the accompanying affidavits and
exhibits, SR Homecare of NY, Inc. has closed, and its clients MUST be transferred pursuant to
the closure plan.
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43. Aside from the deficiencies in their request for an injunction, Plaintiff has not
made a clear and convincing showing and has offered no evidence of any kind that ANY patients
have been solicited or encouraged to leave Elim Home Care Agency, LLC or Evergreen Adult
Daycare Center, Inc. The only evidence presented—in the form of defective affidavits—shows
that clients left SR Homecare of NY, Inc., a transition that took place pursuant to a closure plan
which was years in the making, and of which Plaintiff was fully aware. Moreover, as shown in
the accompanying affidavits, the number of patients at Elim Home Care Agency, LLC has been
steadily increasing since the business opened, vitiating the allegation that any of the Defendants
are siphoning away clients to other businesses. In short, there is no evidence submitted that
shows the conduct Plaintiff is alleging, much less clear and convincing evidence. Plaintiff is
unlikely to prevail on the merits.
B. Irreparable Harm
44. As discussed in Section III above, Plaintiff has no standing to seek relief on
behalf of either corporate entity she purports to represent. As a result, calculating her monetary
damages from the conduct of which she complains, even if meritorious, involves straightforward
math: her share of the lost profits from the clients she alleges were solicited away from the
corporate defendants.
45. Where a quantifiable remedy at law exists, as here, a finding of irreparable harm
is precluded. See U.S. Re Companies, Inc. v. Scheerer, 41 A.D.3d 152 (1st Dept. 2007).
46. Consequently, Plaintiff cannot meet the second requirement of the injunctive
relief she is seeking, as her damages, if any, could be remedied by a monetary award.
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C. Balance of Equities
47. As shown in the affidavits and documents submitted with this opposition, patient
enrollment at Elim Home Care Agency, LLC has been steadily increasing, and is expected to
continue to do so. This evidence greatly outweighs Plaintiff’s unsupported, naked allegations
that clients are being diverted, and the business is being looted of its clients.
48. As a result, the balance of equities favors the Defendants, as without an
injunction, the business is expected to continue its growth. Plaintiff has not shown and cannot
show how she will be harmed in the absence of an injunction. In her moving papers, she has
presented no evidence, aside from her own confused narrative allegations, of a single patient
being transferred from any of the corporate entities aside from SR Homecare of NY, Inc., which
closed, and transferred all its patients to new providers as it was required to do by law.
49. Consequently, Plaintiff has not satisfied any of the three prongs of her request for
injunctive relief restraining Defendants from taking certain actions with regards to the clients of
“the SR partnership,” Elim Home Care Agency, LLC, or Evergreen Adult Daycare Center, Inc.
That portion of her motion must be denied.
V. Plaintiff has not established any right to her former employment, and cannot be
granted access to the premises, staff, or day-to-day business operations.
50. “It is still settled law in New York that, absent an agreement establishing a fixed
duration, an employment relationship is presumed to be a hiring at will, terminable at any time
by either party.” Sabetay v. Sterling Drug, Inc. 69 N.Y.2d 329 (Ct. App. 1987) (internal citations
omitted).
51. An at-will employee may be terminated for any reason, or for no reason at all, so
long as the reason for the termination is not improper (i.e. based on race, gender, etc.). Smalley
v. Dreyfus Corp., 10 N.Y.3d 55 (Ct. App. 2008).
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52. Here, Plaintiff has not presented any written employment agreement. Instead, she
presents the letters terminating her employment, and complains that her replacement will not be
as effective as she was in performing her job duties.
53. Defendants do not need to present a reason to the court for their termination
decision; however, as explained in the accompanying affidavit of Yvonne Ward, Plaintiff was
terminated because her improper and illegal actions with regards to payroll have caused some of
the Defendants to face an FLSA collective action for the underpayment of overtime and spread
of hours, among other alleged labor law violations. That dispute is currently in mediation, and
due to Plaintiff’s actions, the Defendants are facing substantial potential liability.
54. There is nothing improper about terminating an employee for being bad at her
job; Mrs. Kang mishandled payroll procedures so badly, she directly caused a collective federal
action to be brought against her former employers. Even if she had a contractual right to her
position- which she does not, and does not allege or demonstrate here- sufficient grounds would
exist for her termination.
55. Consequently, the portion of the motion seeking access to the premises, access to
the staff, access to the business records she could access during her employment, and her salary,
must all be denied; she has made no showing, nor can she, that she is entitled to this relief.
VI. Plaintiff has demonstrated no grounds for judicial relief in the form of an order to
preserve relevant records; a litigation hold letter would have sufficed.
56. As discussed above, one of the elements the movant must prove in order to obtain
injunctive relief is irreparable harm in the absence of injunctive relief; a fortiori, injunctions will
not issue where they are patently unnecessary, because protections are already in place against
the feared conduct.
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57. In her order to show cause, Plaintiff seeks an order from the court requiring
Defendants to preserve the records that might be relevant to the claims she purports to bring
against those Defendants.
58. Plaintiff has not explained why such an order should issue; it is unexplained and
unsupported in her papers in support of the motion.
59. In fact, such an order is unnecessary for two independent reasons. First, as
regulated health care agencies, the Defendants are bound by record-keeping rules that would
preclude the destruction of any business records related to their patients (See Ward Affidavit,
Par. 18). Second, though she has not thought to take this step, Plaintiff could obtain the relief
she is seeking by sending a “litigation hold” letter, which is typically issued at the
commencement of litigation. The fact that Plaintiff has not taken such an obvious and standard
step does not mean she is entitled to have this Court do so through an extraordinary order.
60. For these reasons, Plaintiff cannot show that relief from this Court is necessary or
appropriate, and she has presented no evidence in support of such an unusual request.
VII. Plaintiff’s request for injunctive relief as to transferring clients fundamentally
misunderstands the role of provider agencies in the home health and adult day care fields.
61. In her motion, Plaintiff seeks a restraining order preventing Defendants from
transferring clients from one agency to another.
62. Agencies have no ability to transfer patients in these industries. While they can
refuse to accept patients or require them to transfer to other providers under certain
circumstances, such as closure (see: SR Homecare), it is the patients who determine the agency
from which they choose to receive services. That is simply not something the agencies have any
role in deciding.
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63. As explained in Par. 17 of the Ward Affidavit, even if a provider wanted to
transfer a number of patients from one agency to another, they have no mechanism by which to
do that, any more than a barber can decide to transfer his clients to a competitor. The patients
apply for benefits and services, and indicate the agency from which they desire to receive those
services.
64. Plaintiff makes several naked assertions that patients were transferred, but with
the exception of SR Homecare- which had all of its patients transferred after it closed- she
provides no explanation as to how that could have taken place. It is her burden to show that the
conduct she is complaining of actually is taking place, and here, she fails to sustain that burden.
65. The only factual basis from which Plaintiff asks the Court to conclude that
transfers are taking place- her unsupported allegation that Elim’s patients are being transferred to
other providers- is completely contrary to the evidence, which shows that Elim continues to grow
exponentially in the number of patients under its care.
66. Aside from her self-serving, unsupported allegations- which are presented as a
defective affidavit, as explained above- there is no basis whatsoever for the Court to find that
patients are being transferred by any of the Defendants to any other agencies; that is, simply put,
not how the health care industry works.
67. In the absence of any evidence to support the allegations, Plaintiff cannot show
that this relief should be granted, and it should be denied.
68. In conclusion, Plaintiff’s motion must be denied on multiple, independent
grounds: it has been presented without admissible evidence; it is based upon foreign-language
affidavits which are defective under CPLR 2101(b); it does not state, let alone demonstrate by
clear and convincing evidence, the elements of a claim for injunctive relief; it requests relief that
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is not within the Court’s power to grant (resuscitating a closed company, granting it a license it
has surrendered pursuant to a closure plan, and re-employing Plaintiff at said company); and
where factual allegations can be found in the moving papers, they are roundly contradicted by
Plaintiff’s own documents, as well as those appended to this opposition.
69. For all those reasons, alone and together, the motion should be denied in its
entirety.
Dated: August 29, 2019
Bayside, New York
____________________________________
RHA & KIM, LLP
By: Andrew D. Grossman, Esq.
Attorneys for Defendants
215-45 Northern Blvd., Suite 200
Bayside, NY 11361
Tel: (718) 321-9797
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FILED: QUEENS COUNTY CLERK 08/29/2019 04:49 PM INDEX NO. 707381/2019 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 08/29/2019 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 Index No.: 707381/2019 EVERGREEN ADULT DAYCARE CENTER, INC., AFFIRMATION IN Plaintiffs, OPPOSITION TO ORDER TO SHOW CAUSE -against- EVERGREEN ADULT DAY CARE IN FLUSHING INC., EVERGREEN ADULT DAY CARE IN NY INC., EVERGREEN ADULT DAYCARE CENTER INC., EVERGREEN FLUSHING NEW YORK LLC, EVERGREEN SENIOR DAYCARE CENTER INC., EVERGREEN HOMECARE SERVICE OF NY, INC., BYUNGKI KOO a/k/a JAMES KOO, and HYUNGJONG KOO a/k/a TOMMY KOO, Defendants. -----------------------------------------------------------------------X Andrew D. Grossman, an attorney duly licensed to practice law before the courts of the State of New York, affirms the truth of the following under the penalty of perjury: 1. I am an attorney with the law firm of Rha & Kim, LLP, attorneys for the Defendants (excluding Hyungjong Koo, who has not yet been served) in this action. 2. The bases for my knowledge as stated below are my conversations with the business principals, a review of the paper records, and the proceedings had to date in this case. I. Factual Background A. SR Homecare of NY, Inc. 3. SR Homecare of NY, Inc. (which is not a party to this action) was a company providing home health care services to the elderly. From January 1, 2015 through March 15, 2019, the business was run under management and consulting agreements with Evergreen 1 of 15 FILED: QUEENS COUNTY CLERK 08/29/2019 04:49 PM INDEX NO. 707381/2019 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 08/29/2019 Homecare Service of NY, Inc. A true and correct copy of those agreements is attached hereto as Exhibit A. 4. As the name suggests, SR Homecare of NY, Inc. is not a partnership, as alleged by Plaintiff; it was a corporation owned by Susan Rabinowitz, a non-party. 5. During the period of that consulting and management agreement, Evergreen Homecare Service of NY, Inc. was in the process of acquiring the assets of SR Homecare of NY, Inc. The reason that process took several years was due to the heavy regulation of the industry— the purchase and closure plan had to be approved by the New York State Department of Health—and due to a dispute with the attorney for the sellers, which required arbitration to resolve. 6. Plaintiff Yangsil Kang, who was employed by SR Homecare of NY, Inc., was intimately familiar with the consulting and management agreements, and the process of transitioning that business to Evergreen Homecare Services of NY, Inc. 7. Pursuant to the consulting and management agreement, Evergreen Homecare Services of NY, Inc. had the right to receive profits from the operation of SR Homecare of NY, Inc. during the consulting and management period. 8. In May 2016, Plaintiff Yangsil Kang entered into a written agreement with Hyunjong Koo, under which Ms. Koo, the owner of Evergreen Homecare Services of NY, Inc., recited her entitlement to profits from SR Homecare of NY, Inc., and promised to pay Ms. Kang 49% of those profits in exchange for an up-front payment of $150,000. 9. Over the course of the next nearly three years, Ms. Kang was in fact paid her share of the profits, and made back her investment several times over. She was more than adequately compensated for her investment. 2 of 15 FILED: QUEENS COUNTY CLERK 08/29/2019 04:49 PM INDEX NO. 707381/2019 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 08/29/2019 10. In March 2019, in keeping with the long-planned transition, SR Homecare of NY, Inc. stopped operations. Neither Ms. Kang nor Ms. Koo have received any profits from Sr. Homecare since that time. Pursuant to the closure plan, patients were primarily transitioned to Evergreen Homecare Service of NY, Inc. A true and correct copy of the closure approval letter from the New York State Department of Health is attached hereto as Exhibit B. 11. To be clear, following the acceptance of the closure plan, SR Homecare of NY, Inc. is no longer operating, and is no longer authorized by the State of New York to accept or service clients. To the extent Plaintiff’s claim implicitly seeks to restore her position to SR Homecare of NY, Inc., or restore the patients to SR Homecare of NY, Inc., such remedies are not consistent with state law. B. Elim Home Care Agency, LLC 12. On June 17, 2017, the owner of Elim Home Care Agency LLC, Seung Ryun Choi, signed a purchase agreement to sell the business to Daniel Park. At the time of the contract, Elim was not doing business; its assets comprised a license from the State of New York to provide home health care services. A true and correct copy of the purchase agreement is attached hereto as Exhibit C. 13. As Elim Home Care Agency LLC operates in the home health care sector, state approval is required for such a transfer, and so a management agreement was signed making Daniel Park the manager of the agency pending approval of the sale. A true and correct copy of the management agreement is attached hereto as Exhibit D. A true and correct copy of the letter from the New York State Department of Health approving the management agreement is attached as Exhibit E. 3 of 15 FILED: QUEENS COUNTY CLERK 08/29/2019 04:49 PM INDEX NO. 707381/2019 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 08/29/2019 14. On or about February 22, 2018, Elim attempted to secure approval for the change in ownership to Daniel Park. However, due to a moratorium on such transfers, the effort was unsuccessful, and the ownership change was rejected. A true and correct copy of the letter from the state rejecting the transfer is attached as Exhibit F. 15. While the ownership is still in the hands of Seung Ryun Choi, Daniel Park has been the manager since that time, and Elim has been steadily increasing its clientele, growing from 0 clients in 2017, to 53 clients in 2018, and today has more than 409 clients. (See Ward Affidavit, Par. 16). 16. Due to the state moratorium, the Plaintiff herein has no interest in Elim, as (1) such ownership changes must be approved by the state, and (2) the person Petitioner claims ownership rights from, Daniel Park, is not himself an owner, his application for a change in ownership having been rejected by the state. 17. Consequently, Plaintiff has no standing to seek relief as an owner of Elim, as she cannot establish that she is an owner. In fact, the documents plainly and indisputably show that she is not an owner of that agency. C. Evergreen Adult Daycare Center Inc. 18. Though the names of the two entities are similar, it is important to note that Evergreen Adult Daycare Center Inc. operates in a completely different industry Evergreen Home Care Agency LLC and Elim Home Care Agency LLC: it is an adult daycare center, a physical location that provides supervision, programs, and enrichment for senior citizens. It is fundamentally different from a home care service, in which home health aides come to the client’s home and provide services there. The only common nexus—apart from the use of “Evergreen” in the name—is that the services of both industries are tailored towards seniors. 4 of 15 FILED: QUEENS COUNTY CLERK 08/29/2019 04:49 PM INDEX NO. 707381/2019 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 08/29/2019 19. The complaints raised by Petitioner in the moving papers are almost exclusively related to the home health care industry, not the adult daycare industry. In other words, they have nothing to do with Evergreen Adult Daycare Center Inc. 20. The only specific grievance Petitioner raises is that she was terminated from Evergreen Adult Daycare Center Inc., and lost access to the company’s bank account as part of that termination. She is asking to be restored to her position and salary at this company. 21. However, Petitioner has not provided any grounds for the relief she is seeking. She provides no written contract giving her the right to a job at the daycare business, nor can she: she was an at-will employee. 22. It is the Petitioner’s burden to show her entitlement to relief, and as it relates to the daycare business, she has shown nothing to suggest (1) that she is entitled to a position from which she was ousted, or (2) that there are misdeeds related to the business that merit judicial intervention. In short, she cannot show a likelihood of success on the merits, because she has not even stated a claim for which relief can be granted. II. Plaintiff’s foreign-language affidavits have not been properly submitted to the Court, and must be disregarded, leaving this motion without any factual support. 23. “Each paper served or filed shall be in the English language which, where practicable, shall be of ordinary usage. Where an affidavit or exhibit annexed to a paper served or filed is in a foreign language, it shall be accompanied by an English translation and an affidavit by the translator stating his qualifications and that the translation is accurate” CPLR 2101(b). 24. Here, in support of its motion, Plaintiff attaches numerous affidavits, including her own, which are in the Korean language. In fact, several of the purported witnesses explain 5 of 15 FILED: QUEENS COUNTY CLERK 08/29/2019 04:49 PM INDEX NO. 707381/2019 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 08/29/2019 that they do not speak English. However, the only certification by a translator is facially defective for two reasons. 25. First, it does not identify the documents that were translated, except by reference to what appear to be file names, none of which correspond to the documents submitted in support of the motion. 26. Second, the certification does not state that the translation is accurate, or even that a translation was done: it merely recites that “I was able to translate” the list of apparent file names. 27. For those reasons, the Korean language affidavit submitted by Plaintiff and her purported witnesses should be disregarded, as they have not been properly put before the Court pursuant to CPLR 2101(b). 28. Those defective affidavits seek to authenticate all of the exhibits presented in support of the motion. As the affidavits cannot be considered, a fortiori, neither can the exhibits. As a result, Plaintiff is left with no evidence of any kind in support of her position, and cannot prevail on her submission. This alone requires the Court to deny the motion in its entirety. The balance of my affirmation will present alternative, concurrent reasons for such a denial, as the motion lacks substantive merit, but the Court’s inquiry should stop here: as there is no evidence in support of the motion, it must be denied. III. Plaintiff lacks standing to bring any derivative claims on behalf of Elim Home Care Agency, LLC or Evergreen Adult Daycare Center, Inc. 29. “A cause of action for wrong done to the corporation belongs to the corporation…the question whether the corporation should seek to enforce in the courts a cause of action for damage is, like other business questions, ordinarily a matter of internal management and is left to the discretion of the directors, in the absence of instruction by vote of the 6 of 15 FILED: QUEENS COUNTY CLERK 08/29/2019 04:49 PM INDEX NO. 707381/2019 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 08/29/2019 stockholders.” Koran v. Savory, Inc., 276 N.Y. 215, 217 (Ct. App. 1937)(internal citations omitted). 30. In a shareholder derivative action, “the complaint shall set forth with particularity the efforts of the plaintiff to secure the initiation of such action by the board or the reasons for not making such effort.” NY Bus. Corp. Law § 626. 31. The demand requirement rests on “basic principles of corporate control—that the management of the corporation is entrusted to its board of directors, who have primary responsibility for acting in the name of the corporation and who are often in a position to correct alleged abuses without resort to the courts.” Bansbach v. Zinn, 1 N.Y.3d, 1, 8-9 (Ct. App. 2003). 32. In the instant case, Plaintiff has failed to allege that any such demands were made, or that any such demands would be futile. Her moving papers, along with her complaint, are devoid of any information as to who comprise the board of directors for Elim Home Care Agency, LLC or Evergreen Adult Daycare Center Inc., nor does she “set forth with particularity” any efforts she made to have the corporation pursue legal action against the alleged tortfeasors. 33. While a demand on the board may be excused in cases of futility, in order to justify the failure to make a demand, “it is not sufficient to name a majority of the directors as defendants with conclusory allegations of wrongdoing or control by wrongdoers.” Taylor v. Wynkoop, 132 A.D.3d 843 (NY App. 2nd Div. 2015). 34. It is the Plaintiff’s burden, both to allege in her pleadings, and in the case where she seeks injunctive relief, to show clear and convincing evidence that she has either made a demand upon the directors, or that such a demand would be futile. The Plaintiff here doesn’t even tell us who those directors are, nor does she articulate any efforts made to persuade the companies to initiate a lawsuit, nor does she provide a reason why such an attempt would be 7 of 15 FILED: QUEENS COUNTY CLERK 08/29/2019 04:49 PM INDEX NO. 707381/2019 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 08/29/2019 futile. Simply put, Plaintiff has not even made an attempt at sustaining her burden to show that she has standing to act on behalf of the corporation, and to the extent her Order to Show Cause seeks relief on behalf of the corporate defendants, it must be denied. 35. What is plain is that, from the paper presented in opposition, Plaintiff does not have any ownership interest in Elim. She purports to have received shares from Daniel Park, but Mr. Park’s application for a change in ownership was rejected by the state. The current owner of Elim Home Care Agency Inc. is Seung Ryun Choi; Plaintiff has no ownership interest, and thus no standing, to pursue the instant matter as a derivative action. 36. With regards to Evergreen Adult Daycare Center Inc., Plaintiff has provided no grounds of any kind to show what wrongdoing she is complaining of, other than her displeasure at being terminated from her employment. As an at-will employee, she had no right to a job, and has articulated no basis that would give her standing to bring a derivative action on the company’s behalf. 37. In addition, Plaintiff’s claim that she is an owner of Evergreen Adult Daycare Center Inc. is supported by a shareholders agreement, but one for a different company, Evergreen Senior Service Inc. No explanation is given as to why that agreement should entitle her to shares of Evergreen Adult Daycare Center. She then presents two checks made out to different companies entirely (Evergreen Senior Service Inc. and All Boro Evergreen Adult Day Care), and shareholders agreements between herself and Yang Lim Kang, who on information and belief is her husband. 38. Her defective affidavit, however, describes that exhibit as “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 8 of 15 FILED: QUEENS COUNTY CLERK 08/29/2019 04:49 PM INDEX NO. 707381/2019 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 08/29/2019 investment in the business.” The exhibit does not match her description of it; even if it were properly before the Court, it does not support her position. 39. Again, no explanation is given for the discrepancy between how she describes the documents, and what the documents say. As it is Plaintiff’s burden to show that she is a shareholder entitled to relief, her effort to do so here is deficient, and her claim must be dismissed. IV. Plaintiff has provided no basis for a restraining order against the Defendants. 40. In order to prevail on a motion for injunctive relief, a movant must show (1) a likelihood of ultimate success on the merits; (2) the prospect of irreparable injury if the provisional relief is withheld; and (3) a balance of equities tipping in the moving party’s favor. XXXX, L.P. v. 363 Prospect Place, LLC, 153 A.D.3d 588 (2nd Dep’t 2017). Each element must be shown by clear and convincing evidence. Hui v. New Clients, Inc., 126 A.D.3d 759 (2nd Dep’t 2015). A. Likelihood of ultimate success on the merits 41. As a preliminary matter, Plaintiff is seeking this relief against “Defendants,” most of whom are not alleged, let alone shown by clear and convincing evidence, to have any nexus whatsoever to Elim Home Care Agency, LLC or Evergreen Adult Daycare Center, Inc. 42. Moreover, the relief requested includes an injunction against contacting or soliciting clients of “the SR partnership,” which is not defined. If Plaintiff intends to say “SR Homecare of NY, Inc.”, then as explained above and in the accompanying affidavits and exhibits, SR Homecare of NY, Inc. has closed, and its clients MUST be transferred pursuant to the closure plan. 9 of 15 FILED: QUEENS COUNTY CLERK 08/29/2019 04:49 PM INDEX NO. 707381/2019 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 08/29/2019 43. Aside from the deficiencies in their request for an injunction, Plaintiff has not made a clear and convincing showing and has offered no evidence of any kind that ANY patients have been solicited or encouraged to leave Elim Home Care Agency, LLC or Evergreen Adult Daycare Center, Inc. The only evidence presented—in the form of defective affidavits—shows that clients left SR Homecare of NY, Inc., a transition that took place pursuant to a closure plan which was years in the making, and of which Plaintiff was fully aware. Moreover, as shown in the accompanying affidavits, the number of patients at Elim Home Care Agency, LLC has been steadily increasing since the business opened, vitiating the allegation that any of the Defendants are siphoning away clients to other businesses. In short, there is no evidence submitted that shows the conduct Plaintiff is alleging, much less clear and convincing evidence. Plaintiff is unlikely to prevail on the merits. B. Irreparable Harm 44. As discussed in Section III above, Plaintiff has no standing to seek relief on behalf of either corporate entity she purports to represent. As a result, calculating her monetary damages from the conduct of which she complains, even if meritorious, involves straightforward math: her share of the lost profits from the clients she alleges were solicited away from the corporate defendants. 45. Where a quantifiable remedy at law exists, as here, a finding of irreparable harm is precluded. See U.S. Re Companies, Inc. v. Scheerer, 41 A.D.3d 152 (1st Dept. 2007). 46. Consequently, Plaintiff cannot meet the second requirement of the injunctive relief she is seeking, as her damages, if any, could be remedied by a monetary award. 10 of 15 FILED: QUEENS COUNTY CLERK 08/29/2019 04:49 PM INDEX NO. 707381/2019 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 08/29/2019 C. Balance of Equities 47. As shown in the affidavits and documents submitted with this opposition, patient enrollment at Elim Home Care Agency, LLC has been steadily increasing, and is expected to continue to do so. This evidence greatly outweighs Plaintiff’s unsupported, naked allegations that clients are being diverted, and the business is being looted of its clients. 48. As a result, the balance of equities favors the Defendants, as without an injunction, the business is expected to continue its growth. Plaintiff has not shown and cannot show how she will be harmed in the absence of an injunction. In her moving papers, she has presented no evidence, aside from her own confused narrative allegations, of a single patient being transferred from any of the corporate entities aside from SR Homecare of NY, Inc., which closed, and transferred all its patients to new providers as it was required to do by law. 49. Consequently, Plaintiff has not satisfied any of the three prongs of her request for injunctive relief restraining Defendants from taking certain actions with regards to the clients of “the SR partnership,” Elim Home Care Agency, LLC, or Evergreen Adult Daycare Center, Inc. That portion of her motion must be denied. V. Plaintiff has not established any right to her former employment, and cannot be granted access to the premises, staff, or day-to-day business operations. 50. “It is still settled law in New York that, absent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party.” Sabetay v. Sterling Drug, Inc. 69 N.Y.2d 329 (Ct. App. 1987) (internal citations omitted). 51. An at-will employee may be terminated for any reason, or for no reason at all, so long as the reason for the termination is not improper (i.e. based on race, gender, etc.). Smalley v. Dreyfus Corp., 10 N.Y.3d 55 (Ct. App. 2008). 11 of 15 FILED: QUEENS COUNTY CLERK 08/29/2019 04:49 PM INDEX NO. 707381/2019 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 08/29/2019 52. Here, Plaintiff has not presented any written employment agreement. Instead, she presents the letters terminating her employment, and complains that her replacement will not be as effective as she was in performing her job duties. 53. Defendants do not need to present a reason to the court for their termination decision; however, as explained in the accompanying affidavit of Yvonne Ward, Plaintiff was terminated because her improper and illegal actions with regards to payroll have caused some of the Defendants to face an FLSA collective action for the underpayment of overtime and spread of hours, among other alleged labor law violations. That dispute is currently in mediation, and due to Plaintiff’s actions, the Defendants are facing substantial potential liability. 54. There is nothing improper about terminating an employee for being bad at her job; Mrs. Kang mishandled payroll procedures so badly, she directly caused a collective federal action to be brought against her former employers. Even if she had a contractual right to her position- which she does not, and does not allege or demonstrate here- sufficient grounds would exist for her termination. 55. Consequently, the portion of the motion seeking access to the premises, access to the staff, access to the business records she could access during her employment, and her salary, must all be denied; she has made no showing, nor can she, that she is entitled to this relief. VI. Plaintiff has demonstrated no grounds for judicial relief in the form of an order to preserve relevant records; a litigation hold letter would have sufficed. 56. As discussed above, one of the elements the movant must prove in order to obtain injunctive relief is irreparable harm in the absence of injunctive relief; a fortiori, injunctions will not issue where they are patently unnecessary, because protections are already in place against the feared conduct. 12 of 15 FILED: QUEENS COUNTY CLERK 08/29/2019 04:49 PM INDEX NO. 707381/2019 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 08/29/2019 57. In her order to show cause, Plaintiff seeks an order from the court requiring Defendants to preserve the records that might be relevant to the claims she purports to bring against those Defendants. 58. Plaintiff has not explained why such an order should issue; it is unexplained and unsupported in her papers in support of the motion. 59. In fact, such an order is unnecessary for two independent reasons. First, as regulated health care agencies, the Defendants are bound by record-keeping rules that would preclude the destruction of any business records related to their patients (See Ward Affidavit, Par. 18). Second, though she has not thought to take this step, Plaintiff could obtain the relief she is seeking by sending a “litigation hold” letter, which is typically issued at the commencement of litigation. The fact that Plaintiff has not taken such an obvious and standard step does not mean she is entitled to have this Court do so through an extraordinary order. 60. For these reasons, Plaintiff cannot show that relief from this Court is necessary or appropriate, and she has presented no evidence in support of such an unusual request. VII. Plaintiff’s request for injunctive relief as to transferring clients fundamentally misunderstands the role of provider agencies in the home health and adult day care fields. 61. In her motion, Plaintiff seeks a restraining order preventing Defendants from transferring clients from one agency to another. 62. Agencies have no ability to transfer patients in these industries. While they can refuse to accept patients or require them to transfer to other providers under certain circumstances, such as closure (see: SR Homecare), it is the patients who determine the agency from which they choose to receive services. That is simply not something the agencies have any role in deciding. 13 of 15 FILED: QUEENS COUNTY CLERK 08/29/2019 04:49 PM INDEX NO. 707381/2019 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 08/29/2019 63. As explained in Par. 17 of the Ward Affidavit, even if a provider wanted to transfer a number of patients from one agency to another, they have no mechanism by which to do that, any more than a barber can decide to transfer his clients to a competitor. The patients apply for benefits and services, and indicate the agency from which they desire to receive those services. 64. Plaintiff makes several naked assertions that patients were transferred, but with the exception of SR Homecare- which had all of its patients transferred after it closed- she provides no explanation as to how that could have taken place. It is her burden to show that the conduct she is complaining of actually is taking place, and here, she fails to sustain that burden. 65. The only factual basis from which Plaintiff asks the Court to conclude that transfers are taking place- her unsupported allegation that Elim’s patients are being transferred to other providers- is completely contrary to the evidence, which shows that Elim continues to grow exponentially in the number of patients under its care. 66. Aside from her self-serving, unsupported allegations- which are presented as a defective affidavit, as explained above- there is no basis whatsoever for the Court to find that patients are being transferred by any of the Defendants to any other agencies; that is, simply put, not how the health care industry works. 67. In the absence of any evidence to support the allegations, Plaintiff cannot show that this relief should be granted, and it should be denied. 68. In conclusion, Plaintiff’s motion must be denied on multiple, independent grounds: it has been presented without admissible evidence; it is based upon foreign-language affidavits which are defective under CPLR 2101(b); it does not state, let alone demonstrate by clear and convincing evidence, the elements of a claim for injunctive relief; it requests relief that 14 of 15 FILED: QUEENS COUNTY CLERK 08/29/2019 04:49 PM INDEX NO. 707381/2019 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 08/29/2019 is not within the Court’s power to grant (resuscitating a closed company, granting it a license it has surrendered pursuant to a closure plan, and re-employing Plaintiff at said company); and where factual allegations can be found in the moving papers, they are roundly contradicted by Plaintiff’s own documents, as well as those appended to this opposition. 69. For all those reasons, alone and together, the motion should be denied in its entirety. Dated: August 29, 2019 Bayside, New York ____________________________________ RHA & KIM, LLP By: Andrew D. Grossman, Esq. Attorneys for Defendants 215-45 Northern Blvd., Suite 200 Bayside, NY 11361 Tel: (718) 321-9797 15 of 15