Publication, Scott M. Himes, “Don’t Be a ‘Tilting-at-Windmills’ Litigator,” New York Law Journal, October 6, 2023.
KMH Attorneys Again Named 2023 Super Lawyers. October 1, 2023. Partner Scott Himes was again named to 2023 New York Metro Super Lawyers in Business Litigation. Partner Ryan O. Miller was selected again to Super Lawyers for Real Estate. Read more
Published annually, Super Lawyers selects the top five percent of leading professionals in a geographic area who have attained a high degree of peer recognition, as well as excellence in their practice area. Among this 2023 recognition for KMH attorneys, Scott Himes has been selected in Business Litigation annually for many years now.
New Associate joins KMH. Kyle Burns joined KMH as its newest lawyer in August 2023. Kyle previously clerked for a United States Magistrate Judge for the Southern District of New York, after beginning his career at a major New York City law firm. He received his law degree from the University of Virginia School of Law. Kyle brings a wealth of experience from his federal clerkship and big firm practice, and he will be key lawyer in KMH’s growing litigation practice. Click here to read Kyle’s bio.
Follow Up Speaking Engagement, Scott M. Himes, “Deposition Preparation, Part III of Taking & Defending Depositions: Strategic Tips & Techniques,” for the New York City Bar Association, New York, New York, July 24, 2023. Part III of this City Bar program focused on “specialized depositions,” involving taking and defending depositions of nonparty witnesses, experts, and corporate representatives. Scott served as the moderator for a robust panel discussion involving these important discovery tools. He has substantial experience in these kinds of depositions, both taking and defending them.
Speaking Engagement, Scott M. Himes, “Deposition Preparation, Part I of Taking & Defending Depositions: Strategic Tips & Techniques,” for the New York City Bar Association, New York, New York, July 10, 2023. After participating for many years in the City Bar’s Continuing Legal Education program on depositions, Scott helped expand the one-session program into a multi-part series. In this newly-structured format, Scott participated as a panel member in the first session, which focused on “best practices” in preparation for both defending and taking depositions.
Speaking Engagement, Bryan W. Kishner, “Air rights — Owning a Piece of the Sky,” sponsored by Langdon Title Company, New York, New York, January 4, 2023. The program focused on educating real estate brokers and sales agents on the importance of development rights, with particular emphasis on how developers use air rights to enhance property values. Bryan often presents at programs for real estate brokers on current legal issues.
Several KMH Attorneys Again Named 2022 Super Lawyers. October 1, 2022. Partner Scott Himes was again named to 2022 New York Metro Super Lawyers in Business Litigation. Partner Ryan O. Miller was selected again to Super Lawyers for Real Estate, and Senior Associate Scott Koop also was recognized in 2022 again as a Super Lawyers’ Rising Star in Real Estate. Read more
Published annually, Super Lawyers selects the top five percent of leading professionals in a geographic area who have attained a high degree of peer recognition, as well as excellence in their practice area. Among the repeat Super Lawyers recognition for several KMH attorneys, Scott Himes has been selected in Business Litigation consistently for many years.
Speaking Engagement, Scott M. Himes, “The Non-Business Litigator’s Guide to Business Litigation,” New York, New York, September 21, 2022, presented by the New York City Bar Association. This CLE program is new for the City Bar. Scott assisted in preparing the curriculum, and he spoke on trial practice, both preparation and pointers for a trying a case successfully.
Speaking Engagement, Scott M. Himes, “The ‘How To’ of Successful Motion Practice: Practical Advice and Tips,” New York, New York, September 15, 2022, presented by the New York City Bar Association. Scott helped formulate this program years ago, and he has continued as a faculty speaker ever since.
Speaking Engagement, Scott M. Himes, “Taking & Defending Depositions: Strategic Tips & Techniques,”” for the New York City Bar Association, New York, New York, June 15, 2022. Scott has participated in this program for several years, speaking on different areas within deposition practice, and each year he has helped draft and revise the program’s accompanying written materials.
KMH wins reversal on appeal for clients in significant shareholder derivative case, March 2022. In the fall of 2020, KMH brought a derivative action in New York state court on behalf of several shareholder-investors in a Swiss pharmaceutical company known as Phoenixus A.G. Phoenixus, and its New York-based operating subsidiary, Vyera Pharmaceuticals LLC, were founded and controlled by the infamous Martin Shkreli. Known pejoratively as “Pharma Bro,” Shkreli gained public notoriety years ago for precipitously raising the price of a life-saving drug needed for treating a rare disease, resulting in congressional hearings into the conduct. The complaint KMH filed for its clients asserts that from 2018 to 2020, several Shkreli-appointed corporate officers of Vyera (who also served on the Swiss parent’s board of directors) operated Vyera’s pharma business unlawfully. In particular, the complaint alleges that the officers — acting in concert with Shkreli “behind the scenes” — engaged in self-dealing, improper transactions, and financial misreporting. The shareholders contend that this alleged wrongdoing harmed both Vyera and Phoenixus, thereby also harming them. Read more
In the trial court, the officers moved to dismiss the case. They claimed that because the parent Phoenixus was a Swiss corporation, and Swiss law would apply to decide the shareholders’ claims, Switzerland — not New York — was the better locale for the case. That is, defendants relied on the legal doctrine of forum non conveniens, or “an inconvenient forum,” for seeking dismissal. This doctrine involves analyzing and balancing several factors to decide whether a case is best decided in a New York or foreign court. The trial court sided with defendants. It dismissed the case, concluding that the Swiss courts provided the more appropriate and more “convenient” forum for adjudicating the shareholders’ claims. KMH promptly appealed the dismissal.
The appellate court, the First Judicial Department of the Appellate Division, unanimously reversed the trial court’s decision. The Court rejected the defendants’ contention that the claims were Swiss-based due to Phoenixus’ incorporation and board actions in Switzerland. Instead, the Court accepted plaintiffs’ argument that “[t]he allegations in the complaint make clear that this action has a substantial nexus to New York.” The Court also credited plaintiffs’ central claim — that the defendant-officers “conspired with each other and Phoenixus’s founder, nonparty Martin Shkreli, to engage in self-dealing and that they took actions which harmed Phoenixus and its shareholders.” Overruling the lower court’s findings, the Court held that the bulk of the forum non conveniens factors favored KMH’s clients, not the defendants. The case now returns to the trial court, enabling KMH to prosecute its clients’ claims.
The case is Wormwood Capital LLC, et al. v. Mulleady, et al, reported at 2022 WL 709752, 2022 N.Y. Slip Op. 01526 (1st Dep’t Mar. 10, 2022) (lower court Index No. 656481/20; Appellate Case No. 2021–03941). Partner Scott Himes wrote the briefs and argued the appeal for KMH’s clients. Scott has handled the case from the beginning.
Senior Counsel joins KMH. Carolyn E. Kruk joined the firm in January 2022 as our newest Senior Counsel. Carolyn received her law degree from the University of Calgary in Alberta, Canada, and her Master of Laws from Columbia University in New York. Carolyn joins the firm from the New York City Law Department where, for almost 10 years, she defended the City of New York, New York City Health + Hospitals, and the New York City Department of Education in a broad array of civil rights litigation in New York federal and state courts. Before her time in public service, Carolyn was an associate at the New York office of Hogan Lovells US LLP in the commercial litigation and arbitration group. Her breadth of litigation experience in the public and private sectors brings additional strength to KMH’s litigation practice. Click here to read Carolyn’s bio.
Publication, Scott M. Himes, “Taking Depositions in Discovery for Effective Cross-Examination at Trial,” New York Law Journal, September 30, 2021.
KMH Attorneys Named 2021 Super Lawyers Again. In late September 2021, Partner Scott Himes and Senior Counsel Jeffrey M. Dine were again selected to 2021 New York Metro Super Lawyers in Business Litigation. Partner Ryan O. Miller was again selected to Super Lawyers for Real Estate. Senior Associate Scott Koop also was again recognized in 2021 as a Super Lawyers’ Rising Star in Real Estate. Read more
Published annually, Super Lawyers selects the top five percent of leading professionals in a geographic area who have attained a high degree of peer recognition, as well as excellence in their practice area. Among the repeat Super Lawyers recognition for several KMH attorneys, Scott Himes has been selected in Business Litigation consistently for many years.
Publication, Scott M. Himes, “Reflections on the Well-Pleaded Complaint,” New York Law Journal, August 16, 2021.
Speaking Engagement, Scott M. Himes, “The ‘How To’ of Successful Motion Practice: Practical Advice and Tips,” for the New York City Bar Association, New York, New York, June 28, 2021. Scott was again one of the panelists, together with judges and other experienced litigators, for this popular Bar Association program.
Speaking Engagement, Scott M. Himes, “Taking & Defending Depositions: Strategic Tips & Techniques,” for the New York City Bar Association, New York, New York, June 2, 2021. As for this program in the past, Scott discussed taking and defending “virtual” depositions, an area in which he has significant experience.
KMH prevails for clients in overcoming summary judgment dismissal in unique “wine room design” case. May 2021. KMH’s clients bought a Manhattan penthouse apartment in 2014 and hired engineers and contractors to renovate it. The renovation included the design and build-out of a fully functioning “wine room” – a New York City apartment version of the traditional wine cellar used for storing and aging quality wines at an appropriately chilled temperature. The wine room was critical to the clients’ project because they own and operate an Italian winery, and they planned to market the business’s vintage wines in the U.S., including at wine tasting events hosted at home.
Once built, however, the wine room failed to cool properly. It could not be used to store and age the clients’ wines. The clients and their new professionals determined that the engineering firm that designed the wine room had recommended an insufficient cooling unit and had otherwise miscalculated the cooling specifications. Further, fixing these deficiencies would require extensive and intrusive demolition and reconstruction throughout the apartment, at a substantial cost.
KMH sued the engineering firm responsible for the wine room’s design and choice of the cooling unit. The main issue was whether the firm met its legal obligation to design a refrigeration system that satisfied the clients’ need for a functional wine room. Read more
The motion involved the proverbial “battle of the experts.” To support the clients’ claim that the engineering firm failed to meet its obligations, KMH presented extensive expert evidence — proof involving the thermodynamics for a refrigeration system and, in particular, the heat calculations and construction-design criteria for achieving the controlled temperature necessary to store the clients’ vintage wines. This proof supported the clients’ position that, as the Court described it, the firm had “miscalculated the cooling specifications” and “designed a dysfunctional wine room.” In ruling in favor of KMH’s clients, the Court agreed with KMH’s position and found that the case could not be dismissed on summary judgment, thereby allowing KMH’s clients to go to trial on their claims.
The case is Mathias, et ano. v. Fiskaa Engineering, LLP, et al., Index No. 655516/2017, Supreme Court of the State of New York, County of New York. Partner Scott Himes and Senior Counsel Jeffrey M. Dine handled the motion.
New Associate joins KMH. In March 2021, Huma Ali joined Kishner Miller Himes as our newest associate. Ms. Ali is a graduate of Fordham University School of Law, and she holds a graduate-law LL.M. degree from the Sorbonne Law School, Université de Paris I, with a concentration in French, European, and International Business Law. Prior to joining KMH, Ms. Ali served as a law clerk in New Jersey state court and as an associate in a Manhattan insurance defense firm. Her broad education and prior experience enhance KMH’s strengths in both our litigation and transactional practices. Click here to read Huma’s bio.
Speaking Engagement, Bryan W. Kishner, “Real Estate Investors – What Every Agent Needs To Know,” for Langdon Title Company, New York, New York, February 17, 2021.
KMH succeeds on motion to dismiss lease guarantor in case establishing important precedent on the application and constitutionality of a New York City law enacted to protect individual guarantors from liability arising from government mandated pandemic closures, November 2020. A landlord sued KMH’s clients, a tenant operating a restaurant in the landlord’s building and an individual who had guaranteed the tenant’s lease, for allegedly failing to pay rent during the COVID-19 public health emergency. The case involved Section 22-1005 of the Administrative Code of the City of New York, which was enacted in May 2020 and prohibits for a specified time the enforcement of a person’s guaranty for obligations, such as rent under a lease, of businesses impacted by closures and restrictions imposed by the government due to the pandemic. KMH’s guarantor-client sought to dismiss the case on the contention that this provision protected him from the landlord’s claims to enforce the guaranty for the tenant’s unpaid rent. The Court addressed three significant issues. Read more
First, the landlord argued that the personal liability protections could be applied only if the guarantor obligation existed in the tenant’s lease itself, rather than in a separate agreement. The New York County Supreme Court disagreed. The Court held that the law applies to stand-alone guarantee instruments, and is not limited to a guaranty provision contained within a commercial lease. The Court found that the law’s phrase “‘relating to such a lease’ implicates a guaranty signed as a separate agreement.”
Second, and relatedly, the Court concluded that a September amendment that added “relating to such a lease” simply “clarified the intention of the rule” to apply to a personal guaranty whether or not it appeared in the commercial lease itself — as opposed to creating a new right that did not exist at the time the law was originally enacted. Further, the Court rejected the landlord’s assertions that the law can apply only to cases commenced after the September amendment, stating: “the language of this [law] (as amended in September 2020) states that it applies to defaults between March 7, 2020 and March 31, 2021 [which] is evidence of [a] conscious and deliberate decision to apply this law retroactively.”
Third, the Court resolved the landlord’s challenge to the law’s constitutionality. The landlord contended that applying the law to a stand-alone guaranty would violate the Contracts Clause of the United States Constitution, which bars the States from enacting any law “impairing the Obligation of Contracts.” The Court rejected this challenge. Noting the grim circumstances of the many New Yorkers’ lives lost in the pandemic, the Court emphasized that under “the police powers of this state . . . [t]he New York City Council decided it was reasonable to enact a law to protect the personal assets of guarantors” for businesses hurt by the legally mandated closures and restrictions. The Court found that the Code provision “is permissible and justified.”
The case is 204 East 38th LLC v. Sons of Thunder LLC, et al., Index No. 155933/2020, Supreme Court of the State of New York, County of New York. Senior Counsel Rachel K. Marcoccia and Associate Jonathan Cohen handled the motion.
Several KMH Attorneys Again Named 2020 Super Lawyers. In October 2020, Partner Scott Himes was again selected to 2020 New York Metro Super Lawyers in Business Litigation. Senior Counsel Jeffrey M. Dine also was named to Super Lawyers in Business Litigation. Partner Ryan O. Miller was selected for Real Estate to Super Lawyers. And Senior Associate Scott Koop was again recognized in 2020 New York Metro Super Lawyers as a Rising Star in Real Estate.
Published annually, Super Lawyers selects the top five percent of leading professionals in a geographic area who have attained a high degree of peer recognition, as well as excellence in their practice area.
Speaking Engagement, Bryan W. Kishner, “Development Rights – The Essentials,” for Langdon Title Company, New York, New York, October 14, 2020.
KMH succeeds in keeping individual defendant in case over opposition that new claim was defective and jurisdiction was lacking, September 2020 — a New York state trial court recently ruled in favor of KMH’s client, a textile supplier, on a motion to amend its complaint to assert a new claim against the owner of a corporate customer who had purchased goods from KMH’s client under a supply contract. When the customer defaulted on about $1.5 million it owed for goods supplied, KMH brought suit for its client.
The court previously had upheld breach of contract claims against the corporation but dismissed fraud claims asserted against the corporation’s owner. Afterwards, the company went bankrupt and dissolved. KMH then uncovered new information showing that the owner had misrepresented his company’s financial condition to induce KMH’s client to enter into the supply contract. KMH sought to amend the complaint to allege these facts and a new claim for fraud against the owner. Defendants opposed, asserting that the claim was legally deficient.
The court addressed the thorny issue of when a statement constitutes a misrepresentation of “present fact” that sustains fraud vs. a statement about “future intent” that is legally insufficient. The court accepted KMH’s argument that the owner’s statements made in connection with the contract “intentionally gave [KMH’s client] the false impression of the company’s ability to pay.” The Court thus allowed the new fraudulent inducement claim. Read more
The owner also argued that, as a California resident, he could not be sued in New York. KMH also overcame that no-jurisdiction argument. The parties’ contract included a “forum selection” clause requiring that lawsuits related to the contract be filed in New York. Although the owner himself was not a party to the contract, the court agreed with KMH that he was “sufficiently closely related” to the company for the court to exercise personal jurisdiction over him under the contract.
As a result of this decision, KMH’s client can proceed against the individual defendant based on the newly-added fraud claim. The case is Next Fabrics, LLC v. Jomar Inc., Index No. 652011/2019, Supreme Court of the State of New York, County of New York. Partner Scott Himes and Senior Counsel Jeffrey Dine handled the matter.
Speaking Engagement, Scott M. Himes, “Taking & Defending Depositions: Strategic Tips & Techniques,” for the New York City Bar Association, New York, New York, June 1, 2020. Of particularly timely significance, Scott’s presentation included “The ‘Virtual’ Deposition.” He has conducted several virtual depositions during the Covid-19 crisis.
Senior Counsel joins KMH. Rachel K. Marcoccia joined the firm in March 2020 as Senior Counsel. Rachel is a graduate of Georgetown University Law Center, and she is a member of the New York and District of Columbia Bars. Most recently, Rachel was Senior Counsel at the New York City Law Department where she defended the City of New York and advised the City’s agencies in a broad array of litigation in New York federal and state courts. Prior to her public service, Rachel was Counsel in the New York office of Reed Smith LLP where she represented multinational companies and other corporate clients and individuals in complex commercial disputes. Her depth and breadth of litigation experience in the public and private sectors brings additional strength to KMH. Click here to read Rachel’s bio.
KMH wins trial verdict for client in long-running shareholder/co-op board dispute, March 2020 — a New York state court recently issued a written Decision After Trial finding in favor of KMH’s client on her claims for breach of fiduciary duty and breach of contract against her Manhattan co-op’s board of directors. The claims arose from the board’s refusal to approve the client’s proposed buyers for the sale of her unit in the building. The co-op’s proprietary lease provided, as is common for Manhattan co-ops, that the board could refuse to approve a shareholder’s sale for “any reason and no reason.” The board also invoked the “business judgment rule,” which generally protects corporate decision-making from judicial review. KMH proved that the board acted in bad faith, thereby overcoming the board’s defenses. Read more
The court recited an amalgam of facts in reaching the bad faith finding. In particular, the board’s refusal came after the client had rejected a lower offer from the board itself to buy the unit for the co-op building. Further evidence that the board raised the price it said would be acceptable and delayed making a formal decision for months also established the board’s improper motivation. Significantly, the court pointedly discredited the testimony given by the board president, who KMH had been methodically cross examined at trial.
The court awarded KMH’s client damages for lost income and carrying costs. It also held that the client is entitled to recover her reasonable attorney’s fees, to be determined in further proceedings.
The case is Graham v. 420 East 72nd Tenants Corp., et al., Index No. 154712/2015, Supreme Court of the State of New York, County of New York. Partners Scott Himes and Ryan Miller tried the case. Previously, in January 2019, KMH had prevailed for the client on the board’s appeal seeking pretrial dismissal of the case, setting the stage for the trial. View Jan. 2019 News Item
New Senior Counsel joins KMH. Jeffrey Dine joined the firm in January 2020 as Senior Counsel. Jeffrey is a graduate of the University of Michigan Law School and a member of the New York and New Jersey Bars. Jeff comes to KMH having practiced for many years at a well-regarded Financial District law firm where he represented private and public companies, hedge funds, banks and individuals in complex and international corporate and commercial litigation and arbitration. Listed as a Super Lawyer in Business Litigation in Metro New York, Jeffrey brings additional strength to KMH’s expanding litigation practice. Click here to view Jeff’s bio.
Speaking Engagement, Scott M. Himes, “The ‘How To’ of Successful Motion Practice: Practical Advice and Tips,” for the New York City Bar Association, New York, New York, December 2, 2019.
Another new attorney joins KMH. Vivian Sobers joined the firm in October 2019 as our newest associate. Vivian was admitted to the New York Bar in 2012. She then managed her own solo firm for almost ten years. Vivian has a wealth of experience in complex business litigation and other areas of commercial litigation, as well as experience helping businesses and individuals in many industries resolve disputes. She also has significant experience, and an active practice, handling corporate and real estate transactions. Vivian’s impressive background and depth of experience further enhance KMH’s flourishing litigation and transactional practices. Click here to view Vivian’s bio.
Several KMH Attorneys Again Named Super Lawyers. In September 2019, Partner Scott Himes was again selected to 2019 New York Metro Super Lawyers in Business Litigation. Published annually, Super Lawyers selects the top five percent of leading professionals in a geographic area who have attained a high degree of peer recognition, as well as excellence in their practice area.
Two KMH associates, Justin Weitzman and Scott Koop, also were recognized (as in past years) in 2019 New York Metro Super Lawyers, as Rising Stars in Real Estate.
Publication, Scott M. Himes, “Don’ts and More Don’ts of Taking Depositions,” New York Law Journal, September 13, 2019
Speaking Engagement, Ryan O. Miller, “Think Like a Lawyer When Conducting Diligence,” for Berkshire Hathaway Home Services New York Properties, New York, New York, July 23, 2019
New attorney for KMH. Briana Vargas, who has worked with KMH since she was a law school student, was admitted to the New York Bar in June 2019, and became our newest associate. She is a recent graduate of St. John’s University School of Law. Briana adds depth to all facets of KMH’s practice. Click here to view her bio.
KMH’s office relocation. KMH moved to new offices in June 2019, relocating to 40 Fulton Street in lower Manhattan’s financial district. Our new offices are conveniently located very near public transportation, and our attorneys are “walking distance” to the New York City courthouses. The move gives KMH more space for its current lawyers and staff, equipped with state of the art technology, and also will accommodate the ongoing growth of the firm’s practice. Click here for full contact and location information.
KMH wins reversal in case clarifying rights for commercial real estate brokers in the New York City area to recover unpaid commissions, May 2019 – KMH’s clients, a commercial real estate broker and his firm, sued a developer and related entities who refused to honor an oral contract promising to hire KMH’s clients as the exclusive brokers for a planned luxury condominium development in the NoMad section of Manhattan. Read more
In exchange for the promised exclusivity, KMH’s clients had accepted significantly reduced commissions for brokering the purchase of property and air rights for the proposed development. The complaint further alleged quasi-contract claims based upon the consulting services provided to the defendants at no charge in exchange for exclusivity. The trial court dismissed the case in its entirety, with prejudice, in part invoking on its own the doctrine of the Statute of Frauds (which requires that certain contracts be in writing) to dismiss the breach of contract claim. KMH was retained to handle the appeal.
In a unanimous decision, the New York State Supreme Court, Appellate Division, First Department, reversed, and denied defendants’ motion to dismiss in its entirety. The appellate court agreed that the lower court should not have invoked the Statute of Frauds because defendants had not sought dismissal on that basis. Significantly, the appellate court held that the Statute of Frauds does not apply to a contract to pay commissions to a licensed real estate broker, which is the essential nature of the oral contract at issue. The appellate court further found that KMH’s clients sufficiently alleged their claims for quantum meruit, unjust enrichment, promissory estoppel, and a declaratory judgment, thereby reinstating the previously-dismissed complaint.
Partner Bryan W. Kishner and associate Elizabeth Tobio handled the appeal (which Ms. Tobio argued). The decision is Elhanani, et al. v. Kuzinez, et al., Index No. 655350/17, Supreme Court of the State of New York, Appellate Division, First Department.
KMH succeeds on appeal establishing important precedent that permits a condo board to hold a sponsor’s representative liable individually for the sponsor’s wrongdoing, February 2019 – After discovering serious construction defects in its building, KMH’s client, a Manhattan condominium board, sued the limited liability company sponsor who developed the property, as well as others involved in the project. Read more
Among the defendants is a principal of the sponsor LLC who, during the period of “sponsor control” under the offering plan, was the sole member of the condominium board. The subsequently-formed board, consisting of the building’s owner-residents (with the sponsor representative having been removed), asserts that the construction defects were brought to the representative’s attention while he alone “was the board,” but to no avail. The appeals court held that the current board could pursue its breach of fiduciary duty claim against the sponsor’s representative individually, because as the sole member of the board, he participated, directed or controlled the sponsor LLC’s decisions and actions. Significantly, the court reversed the lower court’s dismissal of the claim, thereby reinstating it.
This ruling addresses the inherent conflict arising where a sponsor’s representative is the entire condo board and is called upon to deal with residents’ problems attributable to the sponsor. To whom must that person be loyal? In this sponsor-controlled context, the appellate court sided with the new condo residents (and their boards), allowing them to seek redress against that person for breach of fiduciary duty.
Partners Scott Himes and Ryan Miller and associate Justin Weitzman handled the appeal. The decision is Bowery 263 Condominium Inc. v. D.N.P. 336 Covenant Avenue LLC, et al., Index No. 153614, Supreme Court of the State of New York, Appellate Division, First Department.
KMH prevails for client on appeal in significant shareholder/co-op board dispute, January 2019 – a New York State appellate court recently found in favor of KMH’s client, permitting her claims for breach of fiduciary duty and other wrongdoing against a Manhattan co-op board to proceed to trial. Read more
The board had refused to approve the client’s sale of her apartment in the building, even though the client received solid offers from qualified buyers. The client asserted that the board’s refusal was in bad faith and for retaliatory purposes. The board argued that the claims should be dismissed on the rationale that the business judgment rule protected its decision-making. Significantly, the appellate court (like the lower court) rejected the argument. While the court determined that the individual board members could not be held personally liable, the ruling permits the case to go to trial against the board. The trial is now scheduled for this spring. Scott Himes handled the appeal. The decision is Graham v. 420 East 72nd Tenants Corp., et al., Index No. 154712/2015, Supreme Court of the State of New York, Appellate Division, First Department.
Speaking Engagement, Bryan W. Kishner, “Use of the NYC ACRIS System,” for Exit Realty Landmark, New York, New York, December 10, 2018
Speaking Engagement, Bryan W. Kishner, “ACRIS and Other Real Estate Resources,” for Assured Abstract Services, Continuing Education Course, New York, New York, November 6, 2018
Speaking Engagement, Bryan W. Kishner, “Air Rights Owning a Piece of the Sky,” for Langdon Title Company, Continuing Education Course, New York, New York, November 1, 2018
Several KMH Attorneys Again Named Super Lawyers. Partner Scott Himes was selected to New York Metro Super Lawyers in Business Litigation for 2018. Scott has been selected for Super Lawyers each year for many years. Published annually, Super Lawyers selects the top five percent of leading professionals in a geographic area who have attained a high degree of peer recognition, as well as excellence in their practice area.
Justin Weitzman and Scott Koop, both KMH associates, also were recognized in 2018 New York Metro Super Lawyers, as Rising Stars in Real Estate.
Publication, Scott M. Himes, “Pointers for Drafting an Effective Appellate Brief,” New York Law Journal, September 24, 2018
New associate joins KMH. Matthew Blum joined the firm as its newest lawyer in August 2018. Matt brings a wealth of litigation experience to KMH, including significant trial work. Click here to view his bio.
KMH wins case on summary judgment for client, June 2018 — a New York State trial court recently awarded summary judgment to KMH’s client, a corporate “member” of a limited liability company, on its claim against an accounting firm for misuse of the LLC’s funds. The amount awarded was a significant seven-figure sum. The ruling is particularly noteworthy because, while KMH’s client sued derivatively on behalf of the LLC, the court awarded judgment in favor of the firm’s client, rather than the LLC itself, due to wrongdoing by others associated with the LLC. Scott Himes handled the representation from its commencement in 2015 through the June 2018 argument on the motion. The case is Human Nature Las Vegas Inc. v. Scott Gildea, Gildea & Ivanis LLP and Daniel Choueka, Index No. 653611/2015, Supreme Court of the State of New York, County of New York (Justice Melissa A. Crane).
Speaking Engagement, Scott M. Himes, “The ‘How To’ of Successful Motion Practice: Practical Advice and Tips,” New York City Bar Association, Continuing Legal Education program, May 23, 2018
Publication, Scott M. Himes, “The Essence of Litigating Successfully: ‘Communicating Your Story Credibly,'” New York Law Journal, May 8, 2018
Speaking Engagement, Bryan W. Kishner, “Never Lose A Deal,” for Cornerstone Land Abstract, Continuing Education Course, New York, New York, March 15, 2018
Speaking Engagement, Bryan W. Kishner, “Townhouse, Condominium and Cooperative Due Diligence,” for Assured Abstract Services, LLC, Continuing Education Seminar, New York, New York, November 17, 2017
KMH adds new associate. In October 2017, Morgan Maples joined the firm as our fifth associate. Morgan adds to the firm’s depth in both our real estate and litigation practice capabilities. Click here to view her bio.
KMH Lawyers Named Super Lawyers. In October 2017, Scott M. Himes was selected to 2017 New York Metro Super Lawyers in Business Litigation. He has been selected for Super Lawyers annually for many years. Published annually, Super Lawyers selects the top five percent of leading professionals in a geographic area who have attained a high degree of peer recognition, as well as excellence in their practice area
For the second consecutive year, Justin Weitzman was recognized in 2017 New York Metro Super Lawyers, Rising Stars, in Labor & Employment Law
Joseph Loloi was also recognized in 2017 New York Metro Super Lawyers, Rising Stars, in Real Estate
Speaking Engagement, Bryan W. Kishner, “Townhouse, Condominium and Cooperative Due Diligence,” for Wells Fargo and Assured Abstract, LLC, September 11, 2017
Speaking Engagement, Bryan W. Kishner, “Working with Your Attorney: Practical Tips for a Quick Contract Signing and Easy Closing,” for Langdon Title Agency, Continuing Education Seminar, New York, New York, November 10, 2016
Speaking Engagement, Bryan W. Kishner, “The New York Real Estate Transaction – Everything You Need to Know from Pre-Contract to Closing,” for Langdon Title Agency, Continuing Education Seminar, New York, New York, October 27, 2016
Publication, Scott M. Himes, “The CFTC Turns to Insider Trading Enforcement,” The Journal of Investment Compliance, July 2016
Publication, Scott M. Himes, “‘Modified’ Business Judgment Rule for Going-Private Transactions,” New York Law Journal, May 24, 2016
Speaking Engagement, Bryan W. Kishner, “Investing in Condominium and Cooperative Apartments – The Purchase & Sale of Residential Property in New York,” for Wells Fargo and Title Vest Agency, May 19, 2016
Publication, Scott M. Himes, co-author, “Courts Allow States to Regulate Out-of-State Internet Financial Services Providers,” Conference on Consumer Finance Law, Quarterly Report, Vol. 69, No. 1, April 2016
Speaking Engagement, Bryan W. Kishner, “The New York Real Estate Transaction: What You Need to Know from Pre-Contract to Closing,” for Langdon Title Agency, Continuing Education Seminar, New York, New York, March 31, 2016
Publication, Scott M. Himes, co-author, “The Quagmire of the ‘Dual Fiduciary,'” New York Law Journal, March 24, 2016
Publication, Scott M. Himes, “Best Practices For Motions Brief Writing: Part 2,” Law360, March 7, 2016
Publication, Scott M. Himes, “Best Practices For Motions Brief Writing: Part 1,” Law360, March 4, 2016
Speaking Engagement, Bryan W. Kishner, “Condominium Offering Plans: A Broker’s Perspective,” for Langdon Title Agency Continuing Education Seminar, New York, New York, October 29, 2015
Speaking Engagement, Bryan W. Kishner, “New Condominium Development Rights Issues,” in conjunction with MANAR/TitleVest Agency, New York, New York, October 29, 2015
Speaking Engagement, Bryan W. Kishner, “New Condominium Development and Its Unique Issues,” for Langdon Title Agency Continuing Education Seminar, New, York, New York, September 17, 2015
Speaking Engagement, Bryan W. Kishner, “Owning the Sky in New York: Fundamentals of Zoning Lot Mergers and Transfers of Development Rights in New York City,” Bond Brokerage Company, New York, New York, August 13, 2014
Speaking Engagement, Bryan W. Kishner, “Real Estate Matters: Unique Issues in New Condominium Construction,” for TitleVest Agency Continuing Education Seminar, New York, New York, June 12, 2014
Speaking Engagement, Bryan W. Kishner, “The Contract of Sale: How to Think Like an Attorney,” for Langdon Title Agency Continuing Education Seminar, New York, New York, March 12, 2014
Speaking Engagement, Bryan W. Kishner, “Development Rights: The Essentials,” for TitleVest Services Continuing Education Seminar, New York, New York, March 6, 2014
Speaking Engagement, Bryan W. Kishner, “Condominium Essentials,” for TitleVest Agency Continuing Education Seminar, New York, New York, February 26, 2014
Publication, Scott M. Himes, “The Amorphous ‘Personal Benefit’ Requirement for Insider Trading Tipping Liability,” Bloomberg BNA Securities Regulation & Law Report, October 21, 2013
