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Hi Tor Strikes Back: Counterclaim Charges Rockland Green With Breach Of Contract

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Hi Tor Says Rockland Green Improperly Terminated Its Two-Year Contract;  Seeks Damages For Breach And Retention Of Hi Tor’s Property At Shelter


When Rockland Green sued Hi Tor Animal Care Center of Pomona for breach of contract in May, the public authority led by Howard Phillips thought the diminished and depleted nonprofit was in a vice. The juggernaut entity that collects tax money to operate likely figured Hi Tor would not be able to afford to hire legal representation to defend itself.

Rockland Green made a miscalculation that has turned the calculus upside down and will ultimately put Rockland Green on the defensive.

Last week Hi Tor sued Rockland Green, denying the material allegations in Rockland Green’s complaint and filing a counterclaim alleging it was Rockland Green that breached the contract and not the other way around.

“Rockland Green has materially breached the contract,” the suit says. “Rockland Green has also violated the covenant of good faith and fair dealing implicit in the parties’ Contract.”

Hi Tor is seeking an unspecified amount of damages, to be determined at trial.

On Dec. 20, 2022, Rockland Green (the Solid Waste Management Authority) and Hi Tor signed a two-year contract to provide care to and shelter for animals in the county.

“In the event the Solid Waste Management Authority sought to terminate the contract due to a purported default by Hi Tor, it was to provide 30 days’ written notice to Hi Tor of the intent to terminate the contact and afford Hi Tor the opportunity to cure any alleged default,” the suit says, using direct language from the written contract.

“Rockland Green has materially breached the contract,” the suit says. “Rockland Green has also violated the covenant of good faith and fair dealing implicit in the parties’ Contract.”

Further, a motion filed by Hi Tor’s counsel is asking the court to dismiss any liability against individually-named defendants – which are an oleo of some but not all board members, non-board members, former board members and at least one that’s named but was never served – because individual members of a nonprofit or agents of that nonprofit cannot be held personally responsible in a contract dispute.

Rockland Green never issued a notice of intention to terminate the contract between January 1, 2023 through September 21, as required under the explicit terms of the agreement. But on that September day, Rockland Green ousted Hi Tor from the shelter it had operated for 50 years. For nine months, the two entities had functioned in a contentious battle of the wills. Rockland Green had hoped to bring Hi Tor to heel, working every angle to get the shelter to teach the entity about animal management and to insert itself in the day-to-day operations, which was outside the scope of the contract. In turn, Hi Tor endeavored to keep Rockland Green at arm’s length, with its board dictating that it was not Hi Tor’s job to teach Rockland Green how to run a shelter. Hi Tor board members say the shelter operated within the parameters of the contract, despite Rockland Green’s interference.

On September 21, 2023, with no warning, Rockland Green threw Hi Tor off the premises it had leased from the county. Rockland Green bolted the door, caused more than 25 Hi Tor employees to lose their jobs (though none of Hi Tor’s workers were actually employed by Rockland Green), and commandeered all the nonprofit’s possessions, including animal cages and supplies, medical and veterinary equipment, food, medicine, buildings, trailers.

While Rockland Green raised $1.7 million for 2023 ($1.4 million was slated for Hi Tor operations) in taxpayer money to run the shelter, most of Hi Tor’s property pre-existed the contract between the two entities. Without notice or discussion, Rockland Green unilaterally decided the relationship was over because it didn’t approve of how the shelter was being run.

Shocked by the violent intrusion, Hi Tor board members essentially froze. They failed to seek an injunction to stop Rockland Green, nor did they file a lawsuit charging Rockland Green with a breach. Why? Because the nonprofit did not believe it had the financial wherewithal to bring a suit against the powerful public agency.

Instead, they hired Kantrowitz, Goldhamer & Graifman to negotiate with Rockland Green for more than six months. The stalled negotiations, which cost the shelter nearly another $10,000 in legal fees, went nowhere. Rockland Green maintained it was owed about $150,000 in unused salary expenses while Hi Tor said it was out more than $225,000 in unpaid reimbursement and much more in the value of its possessions retained by Rockland Green and later provided to Four Legs Good, the entity chosen by Rockland Green to replace Hi Tor.

The lawsuit, filed by part-time inhouse lawyer Lawrence Garvey who earns $81,000 a year from Rockland Green — and 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 monthly reports required by their contract, on time, every month, according to Hi Tor Board members.

The complaint also charged Hi Tor board members with negligence, but according to a Motion to Dismiss the negligence count, the existence of a valid, enforceable contract between Hi-Tor and Rockland Green precludes Rockland Green from “recasting its breach of contract allegations under a tort theory.”

In countersuing for breach of contract, Hi Tor says the contract said: “Under Schedule A(3) of the contract, while Hi Tor had no possessory right to the Animal Shelter Premises, upon termination of the contract, all of Hi Tor’s “personalty,” furniture, fixtures, equipment, supplies and inventory was to remain Hi Tor’s property.”

Right after Rockland Green terminated with Hi Tor, it hired Four Legs Good, a small cat rescue, which had been illegally operating a shelter from a private home in New City, to operate the shelter.

“Rockland Green proceeded that same day, Sept. 21, 2023, to force Hi Tor and its employees to vacate the Animal Shelter Premises and turn it over to Four Legs Good,” the suit says. Rockland Green turned over control of the premises to Four Legs Good without providing 30 days’ notice and without a chance for Hi Tor to cure alleged defaults.

Additionally, the suit says Rockland Green failed to pay Hi Tor monies it is owed for operating expenses, including expenses for food, medicine and veterinary care, incurred for August and September – taxpayer money Rockland Green has improperly retained.

The contract specifically allowed for mediation of disputes and enforcement of the contract’s terms, but Rockland Green decided instead to file a ten-count complaint in Rockland County Supreme Court against the nonprofit Hi Tor Animal Care Center and its officers and directors. The suit claims Rockland Green is entitled to more than $500,000 in damages for each count in the complaint.

By many accounts, Rockland Green rolled the dice, figuring Hi Tor would have no financial means to defend itself. The agency likely believed Hi Tor would come back to the bargaining table and roll over. Perhaps Rockland Green would simply have been satisfied to wrangle an agreement that would have released the public agency from future liability. Or, maybe it was feeling more ambitious and figured that threatening the decimated shelter with a $5 million lawsuit would incentivize Hi Tor to release its main asset – a more than $475,000 fund that is safely sitting in the Rockland Community Foundation – to get Rockland Green off its back.

Rockland Green made two miscalculations: first, it turned out Hi Tor continued to carry insurance and therefore the entity and its named officers were able to secure legal counsel. Hi Tor and its Board are represented by Robert E. Blanton of Hardin, Kundla, McKeon & Poletto of New York City.

Second, the monies in the Rockland Community Foundation Fund, which were raised for the Hi-Tor rebuild project County Executive Ed Day, the county and town supervisors suspended when Phillips took over animal management, are protected by language in the contract Hi Tor signed with Rockland Green.

“Rockland Green expressly waived any entitlement to $475,000 raised by Hi Tor for the rebuilding of its facility which funds are held by the Rockland Community Foundation,” the lawsuit says.

Further, the defendants who are individually named “are entitled to immunity under Not-For-Profit Corp. Law Section 720-a, none of them are parties to the Contract to sustain breach of contract claims, and the Verified Complaint is void of factual allegations that the….Defendants owed, let alone breached, any duty to the Waste Management Authority to facially sustain negligence claims,” the lawsuit says.

The counterclaim further says: “The only parties to the Contract were the Waste Management Authority and Hi Tor. The contract was executed by both parties.” The suit says: “a plain reading of the Contract reveals no evidence that the Waste Management Authority had a contractual relationship with any of the Moving Defendants; the Contract was solely between the Waste Management Authority and Hi Tor.”

In other words, this is a dispute between Hi Tor, the nonprofit and Rockland Green, the tax-collecting public authority. The individuals named as defendants are not parties to the contract — only the named entities are.

The counterclaim accuses Rockland Green of breaching the contract. Lawyers for Hi Tor also filed a motion to dismiss the case against the individually-named defendants. According to the motion, a cause of action is subject to dismissal if “the party is immune from liability,” and the defendants are entitled to be released if the court “does not find a reasonable probability of gross negligence or intentional harm.”

“None of the exceptions to immunity under S 720-a apply,” the suit says, adding “The Verified Complaint is void of any facts that the Moving Defendants acted with gross negligence or committed an intentional tort.”

While taxpayers continue to feel the squeeze on the cost of living and rising taxes in Rockland County, Rockland Green is doing its bidding and using taxpayer dollars to fund the continued operation of the outdated shelter in Pomona. It is also bonding and raising taxes for a $20 million-and-rising building project to convert a warehouse in a flood zone into the next county shelter — a project it has yet to break ground on almost two years after taking over responsibility for animal management in the county. It has also spent more than $4 million in legal fees in 2023 – twice what the public agency spent on legal fees in 2022.

Many believe Rockland Green lacks accountability – but bear in mind that the voting board members of Rockland Green are Howard Phillips, Clarkstown Town Supervisor George Hoehmann, Stony Point Town Supervisor Jim Monaghan, Orangetown Town Supervisor Teresa Kenny, Ramapo Town Supervisor Michael Specht. Also sitting on the board with a vote is Village of Haverstraw Mayor Michael Kohut, Hillburn Mayor Joseph Tursi, Steve Powers from Ed Day’s office, and eight county legislators: Lon Hofstein, Ray Sheridan, Jesse Malowitz, Aney Paul, Aron Wieder, Douglas Jobson, Jay Hood, and Phil Soskin.