This Article 78 proceeding concerns a 2015 election for the 34th President in a not-for-profit organization, Korean American Association of Greater New York, Inc. (KAAGNY). Petitioner, Ms. Minsun Kim, was a candidate whom KAAGNY's Election Administration Commission disqualified from the election. The disqualification resulted in two selection processes for the president's seat by this fractioned organization yielding two presidents, and three motions in this proceeding, along with three other cases filed by respondents on behalf of KAAGNY, and four judges, two in New York State Supreme Court and two in the United States [*2]District Court for the Southern District of New York^[FN1] .

As to the instant proceeding, only motion sequences 1 and 3 are addressed here; motion sequence 2 was resolved. In motion sequence 1, petitioner Minsun Kim contests her disqualification. In motion sequence 3, petitioners seek a declaration that Ms. Minsun Kim was properly elected and directing respondent, the incumbent and allegedly impeached President, Mr. Sung-Ki Min, to vacate the KAAGNY offices, among other relief^[FN2] . In motion sequence 2, petitioner Minsun Kim moved to join certain KAAGNY members as petitioners and to disqualify respondents' co-counsel, Hojin Seo, Esq. and DeRyook & Aju Law Firm, from this case, which resulted in a stay of this proceeding until November 12, 2015^[FN3] . Thereafter, on January 20, 2016, oral arguments were heard on the remaining motions. The disposition on these motions sequence 1 and 3 are as follows:

KAAGNY is incorporated in the State of New York and serves over 500,000 Korean Americans in the tristate area. It is the umbrella organization for over 200 Korean-American trade, educational, religious, professional, and other associations, and offers a multitude of services and variety of programs for its members.

KAAGNY's structure, pertinent to this case, consists of a president, who is elected by its members for a two-year term. The term commences on May 1 of odd-numbered years and ends on April 30 of the following odd-numbered year. A president may serve two terms (M1- Resps' Opp, Min Aff., ¶ 2). A presidential candidate must pay a candidacy fee of $100,000.00. A president does not receive any monetary compensation, and "is responsible for all the running expenses that occur during his or her Presidency" (id., ¶ 3). A president is empowered by the By-laws to appoint a board and its chairperson. The current Board has 71 members. A president also appoints 9 people to serve on the Election Administration Commission (EAC). The current EAC has 8 members since 1 member resigned due to the instant dispute.

Respondent Mr. Sung-Ki Min was the 33rd President of KAAGNY when this dispute arose. Petitioner Ms. Minsun Kim was an active member of KAAGNY serving as the Chair of the Board from 2012-2013. She was appointed to a second term in May 2013, by Mr. Min when [*3]he was elected president. Ms. Kim also served as the EAC Chair for the 2013 presidential election — the year Mr. Min was first elected president (Petition at 2-3).

According to petitioners, the dispute stemmed from Ms. Kim's opposition to President Min's proposal to sell a prime KAAGNY asset — a six-story building in Chelsea, Manhattan. In April 2014, Ms. Kim presented a proposal to the Board to block the sale and to request an investigation by the New York State Attorney General's Office into KAAGNY's financial records. The Board voted in favor of Ms. Kim's proposal, whereupon President Min dissolved the Board and removed Ms. Kim from her Chairperson position on the Board. Hence, in December 2014, Ms. Kim decided to run for president against incumbent President Min, and stated her intention to some friends and supporters. She also requested a copy of the election regulations from the EAC (id., ¶¶ 18-21). In late January 2015, she stated her intention publicly (id., ¶¶ 22-24).

Meanwhile, President Min convened an emergency Board meeting on January 26, 2015. Ms. Kim learned of this meeting on January 29, whereupon she again requested a copy of the election regulations from the EAC. Her request was denied because she was not an official nominee. On February 3, 2015, the EAC issued a press release regarding its new regulations for the 2015 election which included a new provision that empowered itself to remove candidates who campaign prior to picking a number for the candidate's ballot position. On February 10, Ms. Kim paid the $100,000.00 candidacy fee and was approved as a candidate. On February 19, the EAC announced the 2 candidates for the presidency, Mr. Min and Ms. Kim. The ballot number picking event occurred on February 20, 2015; President Min's ballot was 1 and Ms. Kim's ballot number was 2, meaning her name would appear second on the ballot (id., ¶¶ 25, 27, 33-35). This ballot number picking event was reported the next day in the Korean newspaper, Korea Daily (id., exh N).

Before the Korea Daily was published on February 21, the EAC informed Ms. Kim that her candidacy was revoked due to her campaigning activity in January — prior to the ballot number picking event — in violation of Articles 42, 43 and 44 of the EAC's Regulations for the 2015 presidential election. Article 43 provided that the campaign period as the time between the day after the ballot number picking date and the day before the election; Article 44 prohibited candidates from campaigning outside the campaign period; and Article 42 described campaigning as "activity for certain candidate to be elected or to prevent from being elected and informing candidate's political views, policies and campaign promises to electors with the purpose of candidate winning the election" (id., ¶¶ 36-38; M1 - Resps' Memo, Yu Aff, exh 3). The newly promulgated regulations under Article 44 empowered the EAC to unilaterally disqualify a candidate for pre-election campaigning (id.) and to "take reasonable sanctions and measures against the candidate" upon the candidate's violation of the regulations (M1 — Resps' Memo, Yu Aff, exh 4, Article 24). Based on the new regulations, the EAC disqualified Ms. Kim, which prompted Ms. Kim to complain that President Min also violated the same provisions. The EAC issued a warning to President Min and declined to reconsider its decision regarding Ms. Kim (Petition, ¶¶ 39, 42, and 45).

Thus, Ms. Kim, by this Article 78 petition dated March 5, 2015, sought to enjoin respondents from appointing the sole candidate, Mr. Min, as the 34th President of KAAGNY prior to the 2015 presidential election; to declare the EAC's decision disqualifying her as arbitrary and capricious; and to reinstate her name on the 2015 presidential ballot.

In motion sequence 3 filed on August 3, 2015, Ms. Kim sought new relief because in the [*4]time between motions sequence 1 and 3, Mr. Min was allegedly impeached and his election nullified on March 31st, and Ms. Kim was elected President of KAAGNY on April 26. Thus, Ms. Kim sought an order to have respondents and their agents vacate the KAAGNY offices at 149 West 24 Street in Manhattan and refrain from preventing her and her agents from access thereto; to compel Mr. Min to provide an accounting, inclusive of statements, ledgers, etc., of KAAGNY while he was President, and to appoint an independent attorney to review all financial transactions made on behalf of KAAGNY by Mr. Min and/or his agents after March 31, 2015.

The relief sought in motion sequence 1 is for a judicial review of the administrative action taken by President Min and the EAC. The scope of judicial review in a proceeding pursuant to CPLR Article 78 is limited to the issue of whether the administrative action has a rational basis for its determination (see Matter of Pell v Board of Educ., 34 NY2d 222, 230-231 [1974]). The decision of an administrative agency is entitled to deference by the courts and will not be disturbed unless it was not rational or was arbitrary or capricious (see Samiento v. World Yacht Inc., 10 NY3d 70, 79 [2008]; Matter of Borenstein v New York City Employees' Retirement System, 88 NY2d 756, 760 [1996]). The test of whether a decision is arbitrary or capricious is "determined largely by whether a particular action should have been taken or is justified ... and whether the administrative action is without foundation in fact" (Matter of Pell, 34 NY2d at 232 quoting 1 NY Jur., Admin. Law, § 184, p. 609). Once the court finds a rational basis exists for the determination, its review is ended (Matter of Sullivan County Harness Racing Assoc., Inc. v. Glasser, 30 NY2d 269, 277—278 [1972]).

Petitioners claim that the EAC's decision to disqualify Ms. Kim as a candidate and certain acts of President Min were arbitrary and capricious, in violation of Not-For-Profit Law § 703(a), and bereft of due process. The actions alleged as improper involve: (1) the dissolution of the old and appointment of a new Board of Directors in April 2014; (2) the Special Meeting of the Board of Directors on January 26, 2015; and (3) the EAC's decision to disqualify Ms. Kim as a candidate.

Respondents counter that the actions taken by the EAC and President Min relating to the 2015 presidential election were permitted by the KAAGNY's By-Laws. They argue that the EAC's decision was proper given Ms. Kim's violation of the election regulations and that Ms. Kim waived her right to contest the EAC's decision when she registered as a candidate. They cautioned the court that if petitioners' claims of impropriety in the election process were sustained, then the finding would necessarily nullify KAAGNY's By-Laws.

Motion sequence 1 is seemingly moot considering that the 2015 election was held. In fact, an election and an appointment were held for the same office in the same entity resulting in two of its members claiming to be the 34th President. Thus, this court's decision in motion sequence 1 would settle the substantial legal issues of the elections and their fallout (see Citineighbors Coalition of Historic Carnegie Hill v New York City Landmarks Preservation Commission, 2 NY3d 727, 729 [2004]).

Petitioners argue that KAAGNY's procedure of allowing its President to appoint all 71 members of the Board of Directors gives the President unilateral power, which is inconsistent with the Not-For-Profit Law (N-PLC) notwithstanding that under N-PLC § 703(a), a corporation may elect or appoint its directors for a term as provided in its by-laws. Petitioners claim that the [*5]By-Laws improperly gives the President unilateral power and urge this court to exercise its powers under N-PLC § 618 to nullify the election of Mr. Min.

Pursuant to KAAGNY's By-Laws, the President "commands and supervises" the EAC; the Executive Director of the Board; the Executive Committee; and the Special Committee of which there are six subcommittees^[FN4] . The President has the "exclusive right" of appointing members to the Board of Directors; appoint and dismiss the officers of the Association's Executive Committee and employees of the Association's Office (M1 - Petr Kim's Aff, exh C at 21). The By-Laws confer to its President authority without checks or balances in that the President directs and controls the operation of the Association through unfettered approvals or disapprovals, and appointments and removal of board members and officers. Indeed, under Article 33 entitled "Composition of the Special Committee", "the committee must follow the command of the President" (id. at 13); and Article 34 entitled "Independence of Activities of the Special Committee", "[t]he business and activities of each special committee must be approved by the Board of Directors under the direction of the President, and [the Board-approved activities] may be done by making judgment and acting independently, however, all activities must be reported to and supervised by the President of the Association" (id. at 9, 13, 21, and 26). Thus, even the independence of the approved activities are ultimately controlled by the President.

Nonetheless, the dissolution of the old Board and appointment of the new Board was valid. Chapter 5, Article 17 of KAAGNY's By-Laws provides for "[a] Board of Directors [that] is composed of a minimum of 71 Directors that are appointed by the President in his or her term, or President Elect, and the composition of the next Board of Directors must be finished by March 31[,] which is 30 days before the onset of the term . . . ." (id. at 7). Article 9 limits a Director's term to "one calendar year from May 1 to April 30 at such time which those Directors may be reappointed" (id.).

Thus, when Mr. Min was elected the 33rd President in March 2013 for his first two-year term, he had to appoint his Board of 71 Directors by March 31, 2013. The one-year term of this 2013 appointed Board of Directors ended April 30, 2014, and would have to be reappointed by President Min to remain on the Board. When President Min dissolved the 2013 Board of Directors and appointed a new 71-member Board of Directors in April 2014, he did so in accordance to the KAAGNY By-Laws. As KAAGNY is a not-for-profit organization, it enjoys a presumptive right to "adopt, amend or repeal by-law . . . relating to the activities of the corporation, the conduct of its affairs, its rights or powers or the rights of its members, directors or officers" (N-PCL § 202[a][13]). This court does not have the authority to invalidate KAAGNY's By-Laws.

In exercising his authority, President Min called a Special Meeting of the Board of Directors. According to the Chairman of the Board of Directors, Chang Hyun Yoo, he notified the Board members of the Special Meeting scheduled for January 26, 2015 at KAAGNY's [*6]Queens Education Center in Flushing, by e-mail on January 16, in compliance with the By-Laws' ten-day notice requirement (M1 - Resps' Opp, Yoo Aff., ¶¶ 1-5). On the evening of the Special Meeting, despite the severe winter storm, 22 Board members attended in person and 9 by proxy, making it a total of 31 members to satisfy the quorum requirement (id., ¶ 9). Having a quorum permitted the meeting to proceed, but those appearing by proxy could not vote. At this meeting, Mr. Seung Ryun Lee was voted Chairman of the EAC by 21 votes. The Board then reviewed and adopted the proposed EAC Rules and Regulations by the same 21 votes. One member, Mr. J.D. Kim, Esq., abstained. Thus the EAC Rules and Regulations, as revised, included provisions requiring candidates' waiver of their right to challenge the EAC's decisions, and "The EAC Enforcement Regulation" which enabled the EAC to unilaterally enforce its regulations (id., ¶¶ 14-15).

Petitioners claim that the January 26th meeting did not meet the quorum requirement. Article 25 of the By-Laws states that "[t]he quorum of the meeting of the Board of Directors is satisfied with the presence of a minimum of 31 Directors and can make decisions with the approval of the majority of the members of the Board of Directors who are present . . . ." (M1 - Petr Kim's Aff, exh C at 10). Petitioners argue that there were only 22 Directors present who could make decisions; those appearing by proxy could not vote. Further, only dues paying members can vote; petitioners believed that not all the members in attendance paid their dues. The basis of their belief is from Jung-Dong (JD) Kim, Esq., KAAGNY's Vice-President at the time of the meeting, who affirmed that he had not paid the $1,000.00 fee imposed by President upon KAAGNY members who wished to serve on the Board of Directors, that there was no sign-in sheet at this meeting, and that the votes were unanimous, as announced to the media, were untrue, since he had abstained from voting on the issues presented that night (M1 — Petrs' J.D. Kim's Aff).

While the representations made by J.D. Kim raise concerns about the propriety of the meeting procedures, it is contrasted by Board Chairman Yoo's affidavit. Putting aside the two differing accounts of the Special Meeting, the undisputed fact is the number of directors appearing in person and by proxy. A plain reading of the quorum requirement is "the presence of 31 Directors and can make decisions with the approval of the majority of the members of the Board of Directors who are present" (M1 - Petr Kim's Aff, exh C at 10 [emphasis supplied]). As admitted by respondents, the Directors appearing by proxy cannot vote. The purpose of the proxies was to enable the meeting to proceed, not to decide or vote on matters. Notwithstanding a question raised in this issue — whether a director appearing by proxy is present — the fact remains, there were not 31 Directors who could make decisions at this Special Meeting. Thus, the quorum requirement was not met to permit voting on the EAC issues at the January 26th Special Meeting, which means the votes taken at that meeting were invalid.

The EAC derives its authority from Article 67 — Board of Election — of the By-Laws, to manage the Presidential election (id. at 26; exh E). Under Article 67, the EAC is comprised of 9 members appointed by the President, and are to remain neutral throughout the campaign period. The EAC's term ends with the appointing President's end of term. This particular EAC was appointed by President Min on January 19, 2015, and issued its rules and regulations pertaining to the 2015 presidential elections on January 26 at the Special Meeting, which new rules were sent to Ms. Kim on January 30, 2015 (M1 - Resps' Opp, Yu Aff, exh 9 at 7-8). The EAC disqualified Ms. Kim because of her pre-campaign period activities related to her candidacy, and [*7]under the new rules, immediately disqualified her.

The campaign period starts after the ballot number picking date — for the 2015 presidential election, it was February 20, 2015. Respondents alleged that Ms. Kim violated the By-Laws by campaigning before February 20th. The violations consisted of Ms. Kim's actions at association dinners on January 25 and 31, and in a newspaper on January 10 and 29, 2015.

At the January 25th dinner held by The Korean Sports Association of New York, Inc., its President, James K. Lee, averred that the dinner was an annual event where the organization gives out trophies to winners of the past year's sports competitions and awards to deserving members of the organization (M1 - Petr Kim's Aff, exh B - Lee Aff). It is an annual event where leaders of the Korean American communities are invited; Ms. Kim was one such leader whom he invited. He introduced her to the members, whom she greeted, and announced her intent to run for the President's seat at KAAGNY (id.). At the January 31st dinner held by The Korean Produce Association, its President, Si Yeon You, averred to essentially the same occurrences (id., exh D - You Aff).

As to the media, an article and a photograph appeared in The Korean New York Daily on January 10, 2015, depicting Ms. Kim and her supporters at the Kum Kang San Restaurant, wherein Ms. Kim announced her intent to run for KAAGNY's 34th President's seat. Several speakers gave supporting remarks for Ms. Kim's candidacy in the lines of bridging the gap between generations of Korean Americans. Ms. Kim stated the following, as quoted verbatim from Respondents' proffered English translation of the Korean language newspaper:

"I declare that I run for the presidency of KAAGNY, as a leading entity among other Korean American entities, to serve to represent rights and interests 500,000 Korean American in New York areas, and in order to develop further-oriented and novel KAAGNY which produces positiveenergy for Korean Americans. . . . [I]t was one month ago to make a firm determination for the presidency of KAAGNY" and "for the Korean Americans who used to live in Korea and currently live in the US, theway of thinking that I accounted myself lucky is the important matter through and after restoring self-confidence and self-regard, I believe. . .I will do my best to make KAAGNY to become an advance guard for increasing happiness index of 500,000 Korean Americans in New York areas'"

A "Full Advertisement" in the Korean New York Daily dated January 29, 2015 launched Ms. Kim's "Supporting Group" and listed the members and committees, i.e. "Recommendation Committee". It gave Ms. Kim's profile, but no statements were made by her or her supporters in this advertisement (id.).

Ms. Kim argues that the above-cited activities were not campaign activity. Article 42 of the By-Law defines campaigning as "certain activity for certain candidate to be elected or to prevent from being elected and informing candidate's political views, policies and campaign promises to electors with the purpose of candidate winning the election" (M1 - Petr Kim's Aff, exh E - Article 42).

Ms. Kim's announcement of her candidacy at the various dinner events do not fit the By-Law's definition of campaign activity. Announcing one's candidacy, by itself, does not inform the candidate's political views, policies and campaign promises. Likewise, the statement made in the Korean New York Daily informs its readers of her candidacy for an organization of 500,000 Korean Americans and her hope to increase their "happiness index". No political view, policy [*8]and campaign promise can be gleaned from her remark.

Even if Ms. Kim's pre-campaign activities were considered campaigning, then Ms. Kim's allegation of EAC's non-neutral treatment of the candidates must be reviewed. Ms. Kim alleged that President Min engaged in the same campaigning activity and the EAC issued only a warning to him whereas they disqualified her. Ms. Kim complained of and submitted photographs showing President Min's use of the KAAGNY offices as his campaign office even putting up a banner of his candidacy and provision of KAAGNY-funded meals for his campaign supporters. The EAC decided a warning was sufficient for President's Min's use of the KAAGNY offices for campaign headquarters since the landlord permitted such use and "the banner simply contained the word candidate' [that was put up] before the candidate registration". As for the food that was provided, the EAC could not verify whether it was provided for legitimate committee members for committee meetings or for campaign purposes (M1 - Resps' Opp, Yu aff, exh 9 at 13). But, the EAC "agreed to take legal action against the person and entity for releasing the photographs without consent" (id.). A review of the EAC minutes also showed that the EAC immediately addressed President Min's complaint about Ms. Kim in one meeting whereas Ms. Kim's complaint about President Min was reviewed once and then adjourned three times for disposition (id. at 11).

The EAC's assessment of President Min's use of the word "candidate" in a banner in the KAAGNY-owned premises — and therefore open to its various committees as well as KAAGNY's voting members — as a minor infraction of its rules does not explain its harsher assessment of Ms. Kim's use of the word "candidate" in her announcements to people who may or may not be KAAGNY members. Both Min and Kim used the word candidate prior to the campaign period to show their intent. The punishment for the same violation — not keeping their candidacy under wraps — should be the same. Therefore, absent any rationale for the differing standards, the decision to disqualify Ms. Kim while issuing a warning to President Min for announcing their candidacy is arbitrary and capricious.

This allegation also brings up respondents' claim that Ms. Kim waived her right to challenge any EAC determination by virtue of registering her candidacy. In other words, in adherence to the EAC rules and regulations, as amended by the 2015 EAC Committee, a candidate must pay $100,000 to run for president, a volunteer position, and cannot dispute any acts by the EAC, whose 9 members were appointed by the sitting president, who himself is also a candidate for the same seat. The timing of the EAC's decision, after Ms. Kim paid her fee, after they approved her candidacy, and a few hours after the ballot number picking event, raises questions . . . and eyebrows. In any event, while it is not for the courts to determine a not-for-profit organization's By-Laws (see N-PCL § 202[a][13]), it is for the courts to determine the validity of corporate elections under N-PLC § 618. Indeed, this court has "broad equitable powers and may direct a new election where the election under review is so clouded with doubt or tainted with questionable circumstances that the standards of fair dealing require the court to order a new, clear and adequate expression'" (Faraldo v Standardbred Owners Ass'n, Inc., 63 AD2d 1010 [2d Dept 1978] quoting Matter of Wyatt v Armstrong, 186 Misc 216, 220 [Sup Ct, NY Cty 1945]; see Jackson v First Dist. Dental Soc., 240 AD2d 265 [1997]).

While respondents submitted minutes of the EAC meetings and affidavits espousing neutrality throughout the election process, it cannot be said that this ideal was put into practice. To show its neutrality, Donald Do Young Yu, the Administrator of the EAC, averred that the EAC was not aware of anyone announcing their candidacy for the presidency when they amended the [*9]regulations at its January 24, 2015 meeting. This ignorance is curious since Ms. Kim's announcement of her candidacy was publicized in the Korean New York Daily on January 10th. Also curious is that President Min called a Special Meeting 6 days after Ms. Kim's announcement and formed the 34th EAC Committee 3 days after that. The Special Meeting was for the "Review & Approval of Operation Regulation" — the review of major issues of the 33rd KAAGNY (M1 - Resps' Opp, Yoo Aff, exh 1). The Special Meeting on January 26 dealt with the 34th EAC issues: the ratification of its Chairman; the review and resolution of its regulation of and its enforcement regulation (id., exh 2). Taken together, the occurrence of these events, where there was a rush to implement new rules by a newly formed committee, do not endorse the validity of the election process whereby a candidate can be unilaterally disqualified without a rational basis. The election process engendered by the 34th EAC was tainted with questionable circumstances to say the least. Thus, the subsequent election/appointment of Mr. Min as the 34th President of KAAGNY is invalid.

The above finding leads to the relief sought in motion sequence 3. The facts pertaining to motion sequence 3 are as follows:

According to Ms. Kim, after the EAC disqualified her as a candidate, the incumbent President Min was then the sole candidate on the ballot in the March 8, 2015 election. The Former Presidents Advisory Committee of KAAGNY called a Special General Meeting for March 31, 2015. The day before the Special General Meeting, President Min, on behalf of KAAGNY, filed an order to show cause (OSC) in supreme court against The Former Presidents Advisory Committee and other defendants seeking a temporary restraining order (TRO) to enjoin the General Special Meeting from proceeding on March 31, 2015 (KAAGNY v Andrew Sokchu Kim et al, index 153045/15). Another Justice, Hon. Deborah James, signed the OSC striking the TRO language^[FN5] . The motion was withdrawn on the return date — May 5, 2015.

In the interim, the General Special Meeting proceeded as scheduled wherein, the March 8th election was nullified, and after a vote, President Min was impeached (M3 - Petr Kim's Aff, exh B). A new election process commenced, and on April 26, 2015, Ms. Kim, who was the sole candidate, was duly elected the 34th President of KAAGNY with the two-year term commencing on May 1, 2015.

Thereafter, on April 30th, Mr. Min, who did not accept or acknowledge the impeachment proceeding or the April 26 election, commenced a case in the Southern District of New York, KAAGNY v Jina Aguilar et al, docket 15CV3369, against the KAAGNY business manager for the alleged theft of KAAGNY records. Mr. Min has remained in possession of the KAAGNY building, refusing Ms. Kim access thereto. The New York State Attorney General has stepped into this dispute at the end of March 2015, and, according to Ms. Kim, has instructed Mr. Min to refrain from selling, leasing or otherwise disposing the KAAGNY building.

In opposition to petitioners' motion sequence 3, respondents claim that the procedures for Mr. Min's impeachment and the April 26th election were not followed and the General Meeting was not properly convened. Thus, they concluded that both the impeachment of Mr. Min as the 34th President and the election of Ms. Kim as the 34th President were ineffective. Respondents dispute not only the alleged procedural defects of his impeachment process but also the substantive allegations of violations against him involving the finances and accounting of KAAGNY. However, the substantive nature of these violations are not for this court to address and, indeed, not requested of this court but of the New York State Attorney General's Office.

The first procedural problem with the Special General Meeting cited by Mr. Min in his affidavit was that it was not called by him, the President, but by the Former Presidents whom, he argued, were without authority to do so (M3 - Resps' Opp, Min Aff). Indeed, at oral arguments before this court on January 20, 2016, this group was described as "a bunch of old men who sat around drinking soup", who had no power to impeach him. However, according to Chapter 7 of the By-Laws, the [*10]Former Presidents Advisory Committee is composed of former KAAGNY Presidents who are members of the Board of Directors and has its own set of rules (id., exh 2 at 18-19). It is a permanent body (id. at 4). To impeach the President, the following is needed:

a minimum of 21 members of the Board of Directors, or

251 signatures of the regular members,

confirmation of such at a Board of Directors meeting of at least

47 board members in attendance;

approval by two-thirds of the directors present at the meeting;

if approved, then, a General Meeting with a quorum of more than 250 regular members;

and approval by the majority of the regular members present.

Mr. Min argues that only he can call a Special Meeting of the Board of Directors because he is the President and the Chairman of General Meetings (id., Min Aff, ¶¶ 15, 17). He further argued that the opinion of the By-Laws Committee was wrong as it was biased against him. At this point, the By-Laws Committee had only one member, Gyeong (a/s/a Kyong) Won Min, his opponent's supporter and an added party to the instant suit, who did not adhere to the By-Laws in that he failed to report this activity to him, the President, thus he asked for Gyeong Won Min's resignation (id., ¶¶ 21-22). In response, a former president, Mr. Andrew Sokchu Kim, explains that given the subject of the meeting — impeachment of the President — and due to the vacant vice-presidency, the "old men", consisting of 14 former presidents still active in KAAGNY, reached out to the By-Laws Committee as provided in Articles 95 and 96 of the By-Laws, and sought its advice (id., exh 1 [Aff of Andrew Sokchu Kim] at 5; M3 - Petr Kim's Reply Aff, exh B).

Article 95 — Custom provides that

If a case or situation occurs which is not prescribed in the By-Law,the By-Law Committee may make a determination of action basedupon the prevailing non-profit organization rules of the State andFederal governments.

Article 96 — Authoritative Interpretation provides that

If there is a question pertaining to a particular By-Law or portiontherein which cannot be resolved through the previously statedprocess of the Association, the By-Law Committee may make a determination in order to interpret the intent of the By-Law.

In his affidavit in opposition to another lawsuit brought by Mr. Min on behalf of KAAGNY in federal court, former President Andrew Sokchu Kim averred that Mr. Min, as the 33rd President, violated forty-one sections of the By-Laws, thus was subject to impeachment (id., exh 1 — Aff of Andrew Sokchu Kim, ¶ 33). The By-Laws Committee found it appropriate for the Former Presidents Advisory Committee to call the Special General Meeting (id., ¶ 18). Three days later, on March 13, 2015, Mr. Min terminated the By-Laws Committee Chair and demanded the dissolution of the Former Presidents Advisory Committee — a permanent body (id., ¶ 19). On March 14th, the Former Presidents Advisory Committee called a Special General Meeting for March 31st for the purpose of impeaching Mr. Min as President and Mr. Chang Hun Yoo as the 33rd Chairman of the Board. The call for the Special General Meeting was backed by 1,775 signatures on paper and on-line petitions (id., ¶¶ 21-22).

At the Special General Meeting, there were over 500 members in attendance thus satisfying the quorum requirement of 250 (M3 - Petr Kim's Aff, exh A). After a recitation of the violations committed by both President Min and Chairman Yoo, voting by secret ballot ensued with the result of 624 votes in favor of impeachment of President Min and 2 against out of a total of 639 votes; 638 votes for impeachment of Chairman Yoo; and 630 votes for invalidating the March 8th election (id.).

Respondents challenge the Former Presidents Advisory Committee's assumption of power as the By-Laws did not provide for such authority. However, as respondents had argued in motion sequence 1 that it is not for the courts to determine a not-for-profit organization's By-Laws (see N-PCL § 202[a][13]), the same bar is applicable here. Thus, it is not for this court to interpret Articles 95 and 96 of the By-Laws where the two provisions specifically call for the By-Laws Committee to do so. Given that all other aspects of the Special General Meeting were met with respect to quorum and notice requirements, the impeachment process was valid and, accordingly, Mr. Sung-Ki Min was duly impeached as President of KAAGNY, as was Mr. Chang Hun Yoo as the Chairman of the Board, and the March 8, 2015 election invalidated. As Mr. Min is no longer President of KAAGNY, the By-Laws provide guidance to Mr. Min as to his steps to relinquish the authority and power of the presidency to the incoming President.

Respondents, by their attorney, argue that petitioners' Article 78 proceeding does not permit for the relief sought in motion sequence 3 nor had they amended their petition, and thus, should be denied. They posit that petitioners must seek leave to amend their petition and such leave should be denied because the new relief sought is contradictory to that in the petition. In support of this argument, they cite cases involving new or inconsistent theories of liability or recovery that were not raised in the complaint but in the subsequent motions.

Contrary to respondents' contention, the theories and arguments advanced in motion sequence 3 are not contradictory to those in the petition. In fact, they are almost interchangeable. Both parties cite to the By-Laws and argue allegations of its misuse by their counterparts. The heart of this matter is the claim that the violations of the By-Laws caused the initial disqualification of Ms. Kim's candidacy for the presidency — as claimed by petitioners, and the subsequent impeachment of Mr. Min as president — as claimed by respondents, with both sides claiming their respective adherence to the By-Laws.

Petitioners seek a declaratory judgment — that Ms. Minsun Kim is the duly elected 34th President of KAAGNY — which can be raised in an Article 78 proceeding (see Press v County of Monroe, 50 NY2d 695, 705 [1980]). In any event, this court, by its own motion, may convert this proceeding to an action such that a judgment may be rendered as requested in the motion (CPLR 103[c]).

Given this court's earlier findings that the election process managed by Mr. Min's 34th EAC was invalid, as was the resulting election on March 8, 2015; the processes to impeach Mr. Min as President and to invalidate the March 8th election of him as President were procedurally proper; and absent any claims that Ms. Kim's election was tainted, other than respondents' refusal to recognize her election, Ms. Kim's motion in motion sequence 3 is granted to the extent that this court hereby declares that Ms. Minsun Kim was duly elected the 34th President of KAAGNY. Pursuant to KAAGNY's By-Laws, Mr. Min, who is no longer the President of KAAGNY, is to relinquish [*11]possession and control of all books, documents, contracts, accounting, funds, domain names, passwords, etc. (M3 - Resps' Opp, Min Aff, exh 2 at 36).

Accordingly, it is hereby

ORDERED, the petition is granted to the extent that the EAC's determination to disqualify Ms. Minsun Kim as candidate was arbitrary and capricious, and the election process as managed by the EAC formed by Mr. Min in January 2015, was tainted and the election of Mr. Sung-Ki Min as KAAGNY's 34th President is invalid; and it is further

ORDERED, ADJUDGED, and DECREED, as to the declaratory relief sought, it is granted — Ms. Minsun Kim is the duly elected the 34th President of KAAGNY, and Mr. Min is to turnover and relinquish control of the premises, books, documents, etc. as dictated in the By-Laws of KAAGNY.

This constitutes the decision and order of the court.