Daniel J. Kornstein

Dan represented an advertising agency and mobile phone manufacturer sued for copyright infringement for using an excerpt of a song by deceased singer Nina Simone without paying the singer’s estate. Agency and manufacturer had paid a licensing organization for what they thought were the applicable rights. Case settled. Estate of Nina Simone v. HTC Corp. and Deutsch LA (S.D.N.Y. 2017).

In this breach of contract case, our client sued the New York City Economic Development Corporation for real estate brokerage commission due on renewal of a lease originally obtained by the broker. Case quickly settled for almost $500,000. Schlesinger & Co. v. NY EDC (Sup. Ct. N.Y. Co. 2017).

Won Article 78 proceeding vacating denial of substantial J-51 tax benefits to landlords following their renovations to residential rental properties. Ninth Avenue Realty LLC, et al. v. The City of New York, et al. (Sup. Ct. N.Y. Co. Oct. 10, 2018).

Won summary judgment dismissing remaining claims in a derivative suit by a limited partner against real estate partnerships. NWM Capital, LLC v. Scharfman (Sup. Ct. N.Y. Co. Sept 14, 2017), aff”d, 168 A.D. 3d 624, 2019 NY Slip Op 00674 (1st Dep’t Jan. 31, 2019). Previously won dismissal of other claims. 144 A.D.3d 414 (1st Dep’t 2016). In ruling on a motion for legal fees, Judge Barry Ostrager stated, “Mr. Kornstein is a very creative and effective lawyer.” (Sup. Ct. N.Y. Co. Jan 25, 2018).

Filed amicus brief in the U.S. Supreme Court in November 2016 on behalf of Asian Americans Advancing Justice/AAJC and other civil rights and advocacy groups in Matal v. Tam, 137 S. Ct. 1744 (2017) concerning the right to trademark derogatory terms such as “Slants” for an Asian-American band.

Won an appeal dismissing a $300 million defamation suit. El Jamal v. Weil, 116 A.D. 3rd 732, 988 N.Y.S.2d 146 (2d Dep’t 2014).

Won dismissal for 44 former partners of the law firm Dewey Ballantine LLP of suit brought by former landlord seeking personal liability for $220 million of unpaid rent. 1301 Properties v. Abelson, et al. (Sup. Ct. N.Y. Cnty. Apr. 1, 2016).

Litigated a landmark case up to N.Y. Court of Appeals about (1) client gifts to lawyers, (2) the “continuous representation” doctrine, and (3) unconscionability standards for contingency fee agreements. Lawrence v. Graubard Miller, 106 A.D.3d 607, 965 N.Y.S. 2d 495 (1st Dep’t 2013), rev’d, 24 N.Y.3d 320 (2014).

Won an arbitration award for regional bank making $23 million in home equity lines of credit subject to repurchase because they violated underwriting guidelines or were marred by fraud. Also won $3 million in legal fees and $445,000 in discovery sanctions. M&T Bank v. First Tennessee Bank. (AAA 2013)

Obtained a $55 million settlement for regional bank in suit against several defendants for misrepresentations concerning collateralized debt obligations. M&T Bank Corp. v. Gemstone CDO VII Ltd., et al. (Sup. Ct. Erie Co. 2008).

Litigated the leading “libel tourism” case, which the Financial Times called “perhaps the highest profile case of the past few years.” Ehrenfeld v. Mahfouz, 489 F.3d 542 (2d Cir. 2007). Dan represented American author Rachel Ehrenfeld suing in federal court here to declare an English default libel judgment unenforceable under U.S. law. Although the New York Court of Appeals, answering a certified question, denied personal jurisdiction based on the language of New York’s long-arm statute, it invited the state legislature to change the law. 9 N.Y.3d 501, 851 N.Y.S.2d 381 (2007). The legislature promptly responded in April 2008 by unanimously passing the Libel Terrorism Protection Act to provide such personal jurisdiction in CPLR 302(d), and to make a foreign defamation judgment unenforceable if the foreign proceeding did not provide “at least as much protection for freedom of speech and press in that case as would be provided by both the United States and New York Constitutions.” CPLR 5304(b)(8). The Ehrenfeld case prompted similar legislation in other states and at the federal level. In 2010, Congress passed and President Obama signed into law the federal SPEECH Act modeled on the New York statute. 28 U.S.C. §§ 4101-05. The New York Times called the federal law “a victory for writing.”

Was co-trial counsel in a patent contract case resulting in a jury verdict for $25 million in damages and $10 million in interest. DePuy Inc. v. Biomedical Engineering Trust (D.N.J. 2000).

Won an $8.2 million judgment for a limited partner after a two-week trial against the general partner of a real estate limited partnership. Burstin Investors, Inc. v. K.N. Investors, Ltd., 239 A.D.2d 376, 657 N.Y. 743 (2d Dep’t 1997).

Represented Joe McGinniss, author of the true crime classic Fatal Vision, in a controversial suit brought by triple murderer Jeffrey MacDonald. This case, called “one of the most extraordinary civil actions in American legal history” (Edward Knappman, ed., Great American Trials [1994]), was the subject of Janet Malcolm’s influential book The Journalist and The Murderer. A seven-week trial resulted in a hung jury, and the case was later settled for the same sum offered to MacDonald before trial by the publisher’s insurer. According to a 1988 article in the American Lawyer about the trial, “Kornstein, an experienced trial lawyer, was not about to let MacDonald elicit unwarranted sympathy from the jury. In an incisive and at times devastating cross-examination, [Kornstein] would pick apart MacDonald’s complaints about the book.” MacDonald v. McGinniss (C.D. Cal. 1987).

Represented a famous actress whose contract engagement was canceled by the Boston Symphony Orchestra because of her political views. A highly publicized three-week jury trial resulted in substantial damages for breach of contract. Controversial appeals interpreted the scope of the Massachusetts civil rights law. Vanessa Redgrave v. Boston Symphony Orchestra, Inc., 557 F. Supp. 230 (D. Mass. 1983) (denying motion to dismiss); 602 F. Supp. 1189 (D. Mass. 1985) (ruling on post-trial motion); 855 F.2d 888 (1st Cir. 1988); 399 Mass. 93, 502 N.E.2d 1375 (1987) (answering certified question).

Represented a Hollywood star in breach of contract case arising out of the actor’s role as a corporate spokesman. Case settled at trial. Kirk Douglas v. Unisys (S.D.N.Y. 1989).

Won early dismissal of a suit by the Romanian government against the former ruler of Romania alleging wrongful taking of $500 million in national art work. State of Romania v. Former King Michael (Sup. Ct. N.Y. Co. 1994), aff’d, 212 A.D.2d 422, 622 N.Y.S.2d 704 (1st Dep’t 1995). After the victory, the King wrote Dan: “Your great expertise and relentless efforts have finally brought to an end a matter which I found most upsetting and humiliating. I am aware of the crucial part you played in this successful outcome. I would like to extend to you and your team my heartfelt congratulations for a task superbly done and my personal thanks for your unfailing support and courtesy throughout this difficult episode.” In 2013, in recognition of his legal services, King Michael knighted Dan by naming him an officer of the Order of the Crown of Romania.

Won over $1 million settlement while jury was deliberating after two-week trial based on look-alike sound-alike claim against fast-food chain and advertising agency. Wilford Brimley v. Hardee’s and Ogilvy & Mather (S.D.N.Y. 1995) (Kaplan, J.).

Local counsel for former President Bill Clinton and Senator Hillary Clinton in a successful effort to dismiss a defamation suit by N.Y. Post former gossip reporter Jared Paul Stern. Stern v. Burkle, N.Y.L.J., July 7, 2008, at 18 col. 1 (Sup. Ct. N.Y. Co.).

Local counsel for former President Bill Clinton in a successful effort to quash a deposition subpoena in a libel case arising from the book Primary Colors by Joe Klein. Carter-Clark v. Random House, Inc., 2002 WL 31748573 (Sup. Ct. N.Y. Co. 2002).

Successfully defeated preliminary injunction motion brought by former employer regarding non-compete agreement. Rosetta Marketing Group, LLC v. Michaelson, (Sup. Ct. N.Y. Co. 2012). Decision affirmed on appeal. 107 A.D.3d 536, 966 N.Y.S.2d 671 (1st Dep’t 2013).

Represented broker-dealer in FINRA Arbitration (Sept. 2011) in breach of non-solicitation clause case involving corporate raiding of entire convertible bond trading department. Four-day evidentiary hearing resulted in a favorable award of almost $700,000. Jones Trading Institutional Services LLC v. Nomura Securities Int’l, Inc.

Won summary judgment to enforce contract between unmarried couple who ended relationship, with court holding that past cohabitation is adequate consideration for agreement to provide $500,000 in financial support. Kamil v. Richenthal, 2010 WL 2594276, N.Y.L.J., July 1, 2010, at 26 (Sup. Ct. N.Y. Co.)

Won summary judgment for plaintiff on defendant’s liability for breach of contract for sale of a barge of methanol. Mitsubishi Int’l Corp. v. Interstate Chemical Corp., 2008 WL 4387392, 67 U.C.C. Rep. Serv. 2d 614 (S.D.N.Y. 2008) (Rakoff, J.).

Defeated a preliminary injunction motion, Medici Classics Productions LLC v. Medici Group LLC, 590 F. Supp. 2d 548 (S.D.N.Y. 2008), and then won summary judgment dismissing this trademark infringement case involving recordings of classical music. 683 F. Supp. 2d 304 (S.D.N.Y. 2010).

Obtained court rulings on in limine motions and “serious and important issues about the obligation of the court and counsel when it appears that a client who is a defendant in a civil action lacks capacity to assist or participate in the defense of that action.” Cheney v. Wells, 874 N.Y.S.2d 679 (Surr. Ct. N.Y. Co. 2008), 899 N.Y.S.2d 605 (Surr. Ct. N.Y. Co. 2008), and N.Y.L.J., Oct. 21, 2008, at 35.

Dan was retained shortly before trial by a lawyer and his law firm who were defendants in a suit for various business tort claims seeking millions of dollars by a former CEO of a company. A trial in federal court resulted in a hung jury, but Dan’s post-trial motion won complete dismissal of all claims. Finkelstein v. Wachtel, 2003 WL 1918309 (S.D.N.Y. 2003).

Dan, representing a Chinese clothing manufacturer in a breach of contract case, won summary judgment for $2.9 million, and then won summary judgment to pierce the corporate veil of the defendant corporation to obtain judgment against the principal. Shanghai Join Buy Co., Ltd. v. PSTEX Group, Inc., (S.D.N.Y. 2004).

Successfully represented author/collaborator of book about actress’s life. All claims by actress were “denied in their entirety” after trial. Valerie Harper v. Nancy Jo Sales, (AAA Arbitration 1997).

Dan was retained to defend a state court action seeking to compel his client (an insurer) to pay health benefits to alleged union members. He removed the case to federal court, commenced a civil RICO impleader action, won a $26 million judgment in our client’s favor, and obtained a criminal referral by the trial court that resulted in the criminal conviction of the mastermind of the fraud. Soanes v. Empire Blue Cross and Blue Shield, 970 F. Supp. 230 (S.D.N.Y. 1997). U.S. v. Sprei, 145 F.3d 528 (2d Cir. 1998).

Availability of punitive damages in securities arbitration. Barbier v. Shearson Lehman Hutton, Inc., 752 F. Supp. 151 (S.D.N.Y. 1990), modified, 948 F.2d 117 (2d Cir. 1991).

In this important libel case, Dan won reversal of the district court’s dismissal of a complaint based on a defamatory description of a character with the same name as plaintiff in a novel written by a co-worker of plaintiff. The appellate decision established the test for libel in fiction: whether reasonable readers can associate plaintiff with the fictional character. Geisler v. Petrocelli, 616 F.2d 636 (2d Cir. 1980). Case settled after jury trial began.

In this leading antitrust case involving media advertising, Dan, up alone as a solo practitioner against several of the biggest and most prestigious law firms in New York, won a huge victory on appeal, reversing summary judgment against the plaintiff (Dan’s client). Judge Henry Friendly, in a landmark opinion, analyzed the standards for summary judgment in a Sherman Act § 1 conspiracy case, held that those standards were not met, and remanded the case, which then led to a settlement. Ambook v. Time, Inc., 612 F.2d 604 (2d Cir. 1979).

The Busker Alley Company Limited Partnership v. Tommy Tune, (Actors’ Equity Ass’n Arbitration 1993). Dan won an arbitration for Tommy Tune involving alleged breach of contract in connection with Broadway show “Busker Alley.” After the decision, Tommy Tune wrote to Dan: “Congratulations on a job beautifully expedited and handled with great acuity and class.. . . So just let me thank you profusely for your fine handling of this ridiculous and ludicrous matter . . . I think the world of you.”

Litigated minority shareholder rights and employee-at-will doctrine up to N.Y. Court of Appeals. Gallagher v. Lambert, 74 N.Y.2d 562, 549 N.Y.S.2d 945 (1989).

Dan defended The Monkees in a breach of contract lawsuit brought by their personal manager. Fishof v. The Monkees, (Sup. Ct. N.Y. Co. 1988).

Represented light heavyweight boxing champion in bench trial over contract dispute with former manager. Gregory v. Scorcia, 493 F. Supp. 984 (S.D.N.Y. 1980).