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New York's Virtual Meeting Court Opinion

New York commonly permits corporations, and nonprofits to conduct remote and virtual meetings. Remote meetings contingent on an association’s articles of incorporation, charter, or bylaws. The New York Not-For-Profit Corporation law governs non-profits regarding corporate structure and procedure. If an association is a non-profit, as is the case with most New York associations, it will be governed by the Act. The New York Business Corporation law provides a legal framework relating to the formation and operation of New York corporations. Most New York cooperative associations are organized under the Business Corporation Law and must abide by its provisions. Contact your association’s attorney to see what your community’s options are for virtual meetings based upon your governing documents.

Applicable Statute: Not-For-Profit Corporation Law/Business Corporation Law/Supreme Court Opinion during COVID-19

The Laws Of New York Consolidated Laws Not-For-Profit Corporation Article 7: Directors And Officers

(a) Except as otherwise provided in this chapter, any reference in this chapter to corporate action to be taken by the board shall mean such action at a meeting of the board.

(b) Unless otherwise restricted by the certificate of incorporation or the by-laws, any action required or permitted to be taken by the board or any committee thereof may be taken without a meeting if all members of the board or the committee consent to the adoption of a resolution authorizing the action. Such consent may be written or electronic. If written, the consent must be executed by the director by signing such consent or causing his or her signature to be affixed to such consent by any reasonable means including, but not limited to, facsimile signature. If electronic, the transmission of the consent must be sent by electronic mail and set forth, or be submitted with, information from which it can reasonably be determined that the transmission was authorized by the director. The resolution and the written consents thereto by the members of the board or committee shall be filed with the minutes of the proceedings of the board or committee.

(c) Unless otherwise restricted by the certificate of incorporation or the by-laws, any one or more members of the board or of any committee thereof who is not physically present at a meeting of the board or a committee may participate by means of a conference telephone or similar communications equipment or by electronic video screen communication. Participation by such means shall constitute presence in person at a meeting as long as all persons participating in the meeting can hear each other at the same time and each director can participate in all matters before the board, including, without limitation, the ability to propose, object to, and vote upon a specific action to be taken by the board or committee.

(d) Except as otherwise provided in this chapter, the vote of a majority of the directors present at the time of the vote, if a quorum is present at such time, shall be the act of the board. Directors who are present at a meeting but not present at the time of a vote due to a conflict of interest or related party transaction shall be determined to be present at the time of the vote for purposes of this paragraph.

2019 New York Laws BSC - Business Corporation Article 6 – Shareholders 602 - Meetings of Shareholders.

(a) Meetings of shareholders may be held at such place, within or without this state, as may be fixed by or under the by-laws, or if not so fixed, at the office of the corporation in this state.

(b) (i) A corporation may, if authorized by the board of directors:

(1) implement reasonable measures to provide shareholders not physically present at a shareholders' meeting a reasonable opportunity to participate in the proceedings of the meeting substantially concurrently with such proceedings; and/or

(2) provide reasonable measures to enable shareholders to vote or grant proxies with respect to matters submitted to the shareholders at a shareholders' meeting by means of electronic communication; provided that the corporation shall, if applicable,

(A) implement reasonable measures to verify that each person deemed present and permitted to vote at the meeting by means of electronic communication is a shareholder of record and

(B) keep a record of any vote or other action taken by a shareholder participating and voting by means of electronic communications at a shareholders' meeting. A shareholder participating in a shareholders' meeting by this means is deemed to be present in person at the meeting.

(ii) Nothing required in subparagraph (i) of this paragraph shall limit, restrict or supersede other forms of voting and participation.

(iii) For purposes of this paragraph, "reasonable measures" with respect to participating in proceedings shall include, but not be limited to, audio webcast or other broadcast of the meeting and for voting shall include but not be limited to telephonic and internet voting.

(c) A meeting of shareholders shall be held annually for the election of directors and the transaction of other business on a date fixed by or under the by-laws. A failure to hold the annual meeting on the date so fixed or to elect a sufficient number of directors to conduct  the business  of  the  corporation shall not work a forfeiture or give cause for dissolution of the corporation, except as provided in paragraph  (c) of section 1104 (Petition in case of deadlock among directors or shareholders).

(d) Special meetings of the shareholders may be called by the board and by such person or persons as may be so authorized by the certificate of incorporation or the by-laws. At any such special meeting only such business may be transacted which is related to the purpose or purposes set forth in the notice required by section 605 (Notice of meetings of shareholders).

(e) Except as otherwise required by this chapter, the by-laws may designate reasonable procedures for the calling and conduct of a meeting of shareholders, including but not limited to specifying:

(i) who may call and who may conduct the meeting,

(ii) the means by which the order of business to be conducted shall be established,

(iii) the procedures and requirements for the nomination of directors,

(iv) the procedures with respect to the making of shareholder proposals, and

(v) the procedures to be established for the adjournment of any meeting of shareholders. No amendment of the by-laws pertaining to the election of directors or the procedures for the calling and conduct of a meeting  of shareholders shall affect the election of directors or the procedures for the calling or conduct in respect of any meeting of shareholders unless adequate notice thereof is given to the shareholders in a manner reasonably calculated to provide shareholders with sufficient time to respond thereto prior to such meeting.

Universal Citation: NY Bus Corp L § 602 (2019)

The New York Supreme Court recently ruled that under the COVID-19 emergency amendments to the New York Not-for-Profit Corporation Law (N-PCL), a homeowners’ association board of directors’ decision to not hold an in-person annual meeting, but instead use measures including a telephonic meeting, mail-in voting for the election of new directors and pre-meeting submission of proposed business, complied with HOA bylaws and the N-PCL.