what is the quorum

I think a court would rule that a quorum here is four (a simple majority). Given that the apathy is so bad that the HOA cannot even fill the nine directors' seats, it seems unlikely that anyone would challenge a board meeting with only four (albeit a majority) of directors present.

The community I was managing last year had a 16 person board. That was, to say the least, interesting.

I agree with Richard.

Had your documents said that the number of directors is to be a range of 5 to 9, then the quorum would be the majority of the number of seated directors.

However, your documents specify that the number of directors is 9 and a quorum is 5. Therefore, regardless if the seats are vacant or not, you need to have 5 for a quorum.

The board, although not a quorum, appoints someone to fill the seat (this is typically written in corporate law).

What if there are no volunteers, I faced that. I was prepared to appoint my wife and adult daughter in order to have a quorum. Realistically, I would have likely made all decisions but we would legally have a quorum.

Fortunately, we had individuals step up and serve. Therefore, I never had to implement such a plan.

From what the OP wrote, my premise is that no one is willing to even accept an appointment. The OP is willing to correct this premise.

For some ideas on how to proceed here, I take off the shelf the book on, "What is a legally-constituted board when, say, all board members resign?" Numerous steps need to be taken to re-constitute a legal board, but how can this be done when those taking the steps are not a legal board? I have not seen a state statute, either in condo, HOA or nonprofit corporate statutes that addresses this for HOAs. From the counsel of attorneys and some actual HOA experience, where I am I am aware that judges will not appoint a receiver as long as at least one eligible person is willing to voluntarily run a HOA. Said volunteer hopefully will try to rebuild the board by appointing other directors, one director at a time, with a majority of the directors voting on each appointment. The latter is not in any state statute I have seen (though maybe someone here knows better). The same counsel says that those acting as a board (be it a legal board or not) should try to be fair and reasonable.

I am not saying that Richard and Tim are wrong. A judge might agree with them. I am saying that it is not black and white. In a situation where member apathy plays a huge role, I think the courts want to see HOAs doing "the best they can" under the circumstances. For this situation, to me this means:

-- constantly advertising three openings on the board in question and appointing any reasonably qualified applicants. It also means rejecting unqualified applicants, even though this means all seats may not be filled. Board members have to do what is best for a corporation. This too is not always black and white. As the regulars here know.

-- trying to get as many of the board members to meetings as possible.

-- following corporate law as well as possible. In this case, to me a majority of the serving directors appears to satisfy New York corporate law requirements for a quorum.

Keep in mind that a court won't be involved unless someone takes the issue to the court.
In an apathetic membership, that typically won't happen.

If someone says they are taking the issue to court, offer them a seat on the board in an effort to resolve the vacancy issue. If the individual accepts, great. If the individual refuses, a hell of a story to tell the court.

JohnC46: Indeed. After the judge questioned the plaintiff about why he or she was not willing to serve on the board, I think the judge's stare would be long enough and chilly enough to freeze water into ice.

If the dispute got this far, and if I were the judge, I think I'd rule: 'The HOA has one year to amend the Bylaws to fix this situation. Meanwhile, to avoid a receiver, I will allow a quorum to be a majority of the sitting directors, consistent with the Nonprofit Corporation Statutes, to which this HOA's governing documents say the HOA is bound.'

Richard, we disagree. Though I can appreciate that you think you know how the courts think about these things.

Quorum would only be set in relationship to the number of board members. The five is dependent on the nine and clarifies what a majority is for the nine.

Example if old, poorly thought out bylaws. The founders probably never doubted there would be a shortage of people willing to serve.

Amend the board to a reasonable number and use a legal definition for what the quorum would be.