Legal News Desk

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

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

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

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

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

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

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

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

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