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Suit Seeks To Hold Individuals Liable Though None Were Actual Parties To The Contract Between Rockland Green and Hi Tor
The Legal Beat
In January, Howard Phillips told a crowded room at Rockland Green’s monthly meeting he was coming after the money Hi-Tor Animal Shelter raised over many years to rebuild its shelter, and this is how he’s planning to do it.
On Friday, Phillips, the Chairman of Rockland Green, filed a ten-count complaint in Rockland County Supreme Court on behalf of Rockland Green against the nonprofit Hi Tor Animal Care Center, Inc., of Pomona, most of its Board of Directors (though some are missing from the complaint and some were not on the board during the time of the allegations), a former board President and a former employee, for breach of contract, claiming a series of disputes between Hi Tor and Rockland Green entitles Rockland Green to more than $500,000 in damages for each count in the complaint.
“They’re the ones who breached the contract,” said Kim Von Hein, president of Hi Tor’s board. “They owe us money. I don’t see how this suit is legitimate. We will countersue.”
Von Hein, along with others, says the lawsuit is harassment because the two sides could not reach terms over who owes whom money during a nine-month protracted negotiation.
Since last September, when Rockland Green sent Hi Tor packing from the Firemen’s Memorial Drive Animal Shelter it had occupied for 50 years, the parties have been fighting over who owes whom money, with Rockland Green claiming it overpaid Hi Tor during the nine months Hi Tor provided contractual services for Rockland Green. Hi Tor claims it was not reimbursed for expenses incurred under the contract for August or September, and that Rockland Green illegally stole its equipment, cages, sheds, food, medicine, and veterinary equipment when it kicked Hi Tor out. None of these claims are part of the lawsuit.
Rockland Green in 2023 raised $1.4 million in taxpayer money to fund the shelter; in 2024, it raised the levy to $1.7 million.
The lawsuit isn’t just between Rockland Green and Hi Tor, which signed a two-year contract in January 2023 for Hi Tor to provide animal management services for participating towns in Rockland County. Hi Tor board members say the suit is harassment because Rockland Green has named the individuals as defendants rather than only suing the nonprofit corporation. For 501(c)(3) organizations, directors, officers, trustees, employees, and volunteers are not personally on the hook for the liabilities of the entity, and none of the individuals named in the suit were parties to the contract between Rockland Green and Hi Tor.
On January 25, at Rockland Green’s monthly public meeting, which is attended by its Board of the five Town Supervisors, Village of Haverstraw Mayor Michael Kohut, county legislators, and Steve Powers, County Executive Ed Day’s representative, a Clarkstown resident claimed $300,000 of the Hi Tor Rebuild Fund had been stolen.
In response, Phillips said: “We’re going to go after that money.”
This was not the first time Phillips said both in public and at the negotiating table with Hi Tor and its counsel, that it planned to commandeer monies that have been sitting in a dedicated fund account for several years at Rockland Community Foundation. The funds total somewhere shy of $500,000 – the same amount the suit seeks for each of its allegations.
“He is evil,” said Von Hein, referring to Phillips. “He thinks he’s untouchable. The public needs to know the truth. They breached the contract in every way.”
Phillips has long signaled his disdain for Hi Tor, which ran for decades in a dilapidated complex on a shoestring budget with county and town money along with donations. In 2021, he conceived a plan to take over Hi Tor by amending Rockland Green’s charter to include animal management. Rockland Green subsequently bought a $3.8 million warehouse building in West Haverstraw that needs to be retrofitted for an animal shelter. Estimated costs to build the shelter are at least $20 million and rising, given the volatility of construction costs.
In 2022, the county rented the Pomona shelter for $1 a year in rent to Rockland Green, and Rockland Green reluctantly contracted with Hi Tor to run the shelter it had been operating on county property for years.
Under the terms of the contract, Rockland Green was responsible for maintenance of the facility, the grounds, repairs, providing snow removal, landscaping, utilities, and garbage dumpsters and recycling bins. Hi Tor was responsible for maintaining the staff, housing and the care of animals, purchasing food, veterinary medicine and supplies. Rockland Green had no day-to-day role in the care of the animals, according to the contract terms.
Under the contract, Rockland Green had a right to terminate Hi Tor’s contract at any time but only on two conditions: (1) only with cause; and (2) with 30 days advance notice. Both were required.
Further, the contract provided protection to Hi Tor; Rockland Green was required to give 30-day written notice of termination. However, it also specifically allowed Hi Tor to defeat termination by curing the default complained about within those same 30 days. An additional clause said, “if any such default is not curable within such notice period, by promptly commencing to cure the default and diligently pursuing all necessary and appropriate action to effect such cure within sixty (60) days of the original thirty (30) day notice.” In other words, if Hi Tor couldn’t reasonably cure the breach in 30 days, the nonprofit had an additional 60 days to resolve the issue.
In the nine months Hi Tor contracted with Rockland Green, it never received notification of a breach but the relationship between Hi Tor and Rockland Green was contentious from day one.
“Rockland Green never issued a notice of breach, never gave us 30 days, never allowed us to cure any alleged breach,” said Von Hein. “They never even told us we had breached the contract until they locked us out with no notice. We only knew about the lockout because a Hi Tor volunteer attended a hastily organized daytime meeting where Rockland Green announced the lockout.”
The lawsuit, filed by one of Rockland Green’s consultant attorneys, Lawrence Garvey — who is also chairman of the Rockland Republican party — alleges eight counts of breach of contract, including cigarette butts on the floor, there being only one bathroom (that is what the facility had for 50 years), refusal to accept a rooster and other animals, failure to file reports to Rockland Green’s requirements, failure to provide Hi Tor’s complete set of policies and procedures, or fill out forms requested by Rockland Green. Rockland Green received the required monthly reports, on time, every month, according to Hi Tor Board members.
Further, under its contract with Hi Tor, Rockland Green had no right to manage the day-today care of the animals or manage the Hi Tor staff.
Rockland Green claims in its lawsuit that “each” breach damaged the public authority to the tune of $500,000. Nowhere in the lawsuit does it detail how Rockland Green has been damaged. What they’re asking for with each count is roughly equal to the money in the Rockland Community Foundation fund that Phillips has said publicly he planned to come after.
“I don’t understand how Phillips keeps getting away with what he does,” said Von Hein. “Where is everyone? What about Ed Day.”
Part of the answer to Von Hein’s question lies in Rockland Green’s seemingly bottomless access to legal representation. In 2023, Rockland Green spent over four million dollars in legal fees. This was nearly double the amount it spent in 2022, though some of those expenditures were for issues not related to the animal shelter.
