Gary M. Fellner
Principal
New York, NY
646.348.6722
gmfellner@pbnlaw.com
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Gary Fellner concentrates his practice in commercial litigation and business-related controversies. He is an experienced trial lawyer, having litigated numerous disputes through verdict before arbitration panels, and federal and state courts throughout the United States. He has successfully handled a substantial number of director and officer (D&O) liability disputes in NY, NJ, and DE. Gary approaches his practice with a passion for the law and a tenacity to cut through the delays that often persist in litigation. He combines his legal experience with a keen understanding of the clients’ business and objectives.
Clients enjoy working with Gary because he is both strategic and pragmatic in his approach to legal issues. By considering the client’s objectives, including the bottom line, he strives to determine the course that will produce a prompt and favorable outcome.
Gary is known as an assertive and skilled trial lawyer, regularly representing private and public corporations and individuals in the energy, financial, telecommunications, restaurant, transportation, warehousing, and commercial signage industries.
Current Relevant Experience
- Successfully filed claims for breach of fiduciary duty and breach of contract in the Kansas District Court and Delaware Chancery Court on behalf of a real estate investor concerning a multi-family apartment complex in Kansas. Following trial, the court ordered, as we requested, the property manager and managing member removed, and awarded money damages in favor of the investor, including attorneys fees and expenses incurred as the prevailing party.
- Defended against accounting, conversion, breach of fiduciary duty and breach of contract claims asserted against our client, a national money service agent, in New York State Supreme Court. We removed the action to the American Arbitration Association pursuant to the underlying contract, and after trial, at which accounting experts testified, the arbitrator agreed with us that all claims asserted against our client should be dismissed.
- Defended foreign corporation in the U.S. District Court for the Southern District of New York concerning a complex business agreement in which the purported finder asserted that his company was due a 10% finder’s fee for bringing a $20 million business opportunity to the foreign corporation. The case was dismissed prior to trial on summary judgment.
- Successfully tried a diversity action in the U.S. District Court for the Eastern District of New York on behalf of a well-known telecommunications carrier to secure injunctive and declaratory relief concerning the carrier’s access rights to its telecommunications equipment and rights to improve its underground lines with fiber optics. Defeated the landowner’s claims that it was owed rent escalations under the long-term lease in exchange for the carrier’s right to enhance its equipment.
- Defended a Will contest in the California Superior Court involving a relative’s claim that the decedent’s Last Will should be rejected on grounds of fraud, undue influence, and forgery, and that the relative was owed 50% of the decedent’s $30 million gross estate. Following trial, argued the dispute before the California Court of Appeals, which affirmed the trial court’s decision in all respects.
- Litigated claims before the American Arbitration Association in Manhattan concerning asserted rights to recover over $450,000 in connection with the client’s $2.5 million investment in an upscale restaurant that had closed due to claims of the operator’s mismanagement and breaches of fiduciary duty.
- Prosecuted claims in the U.S. District Court for the District of New Jersey involving fraud, breach of fiduciary duty, and RICO against nationwide co-conspirators due to conversion of $1.2 million.
- Secured injunctive relief following a bench trial in federal court in the Eastern District of Pennsylvania on behalf of an energy service company to enjoin a competitor shown to be “slamming” the client’s customers through unlawful misrepresentations.
- Defended monetary claims of over $850,000 brought by a former executive against a New Jersey employer, prevailing in both defeating the monetary claims and proving the employer’s contractual rights to enforce the non-compete and restrictive covenants contained in the executive’s employment agreement.
- Obtained an injunction in New Jersey Chancery Division to enjoin a client’s principal competitor from defaming and disparaging the client, which defamation could have caused immeasurable damages if it were not enjoined.
- Successfully tried action on behalf of a telecommunications carrier in Pennsylvania concerning real property lease termination issues, and defeated landowner’s claim that it was owed $650,000 under the lease and that the carrier had become a holdover tenant by not properly exercising its right to renew the lease.
- Uncovered assets to hasten a favorable settlement on behalf of a judgment-creditor owed $500,000 from a major national restaurateur who had refused to satisfy any part of the judgment issued after trial in the New York Supreme Court, Westchester County. The judgment arose based upon the judgment-debtor’s disputed payment guarantee for all rent and additional rent owed under a commercial lease with the judgment-creditor.
- Represented a large international energy producer based in Texas in defense of a contract claim filed in the New Jersey Superior Court in which a downstream natural gas supplier asserted that it was owed over $775,000 in compensatory damages and legal fees. The supplier filed suit due to the producer’s failure to deliver natural gas on the daily exchange. The defense invoked the force majeure clause contained in the NAESB industry contract based upon an unforeseen gas leak and disruption in the Tennessee pipeline.
- Evicted a commercial tenant on behalf of a well known hotel in midtown Manhattan after a twelve-day bench trial in New York Supreme Court, New York County. The tenant operated a famous restaurant and night club, falsely claiming it was due over $600,000 in rent abatements and damages for breach of the lease due to the landlord’s purported building code violations.
- Litigated claims in excess of $1.5 million on behalf of a New York real estate developer against a neighboring co-op for nuisance and trespass. The claims arose from the neighbor’s interference with the new development of a 200-unit Class A condominium project during excavation and construction.
Prior Relevant Experience
- Cozen O’Connor, P.C., New York, New York, Firm Member, Business Litigation Department, 2005
- Fischbein Badillo Wagner Harding, LLP, New York, New York, Commercial Litigation Partner, 2002–2005
- Honorable Michael J. Dontzin, Justice of the New York State Supreme Court, New York County, Law Clerk, 1990
Opinions, Decisions and Cases
- Vassi v. The Salem House Condominium Board and T-Mobile Northeast LLC, f/k/a Omnipoint Communications, Inc., 2010 NY Slip Op 31802U; 2010 N.Y. Misc. LEXIS 3240 (New York Supreme Ct. 2010)
- United Resource Recovery Corp. v. Ramko Venture Management, Inc., 07 Civ. 9452, 2009 U.S. Dist. LEXIS 77153 (S.D.N.Y. 2009)
- JPS Capital Partners LLC v. Silo Point Holding LLC, 2009 Slip Opinion 51747U, Lexis 2117 (Supreme Ct., New York Co. 2009)
- Lexington Building Co. LLC v. Anthony Fortunato, (Supreme Ct., New York Co. 2009)
- United Resource Recovery Corp. v. Ramko Venture Management, Inc., 584 F. Supp. 2d 645, 2008 U.S. Dist. LEXIS 87437 (S.D.N.Y. 2008)
- Estate of Robert C. Fortunato, (CA Court of Appeals, 2nd App. District, 2006)
- National Westminster Bank PLC v. Grant Prideco, Inc., 261 F. Supp. 2d 265 (S.D.N.Y. 2003)
- Cabrera v. Quik Park Columbia Garage Corp., 2000 WL 1897348 (E.D.N.Y. 2000)
- Credicom NV v. Colony Credicom, LP, 2000 WL 282 968 (S.D.N.Y. 2000)
- Padco Construction Corp. v. Long Island Construction Corp., 1999 Slip Opinion 06875 (App. Div. 2d Dep’t 1999)
- Monte Carlo Holdings, Inc. v. Manhattan International Realty Partners, L.P., New York Law Journal, Volume 220, Number 105 (New York State Supreme Court, New York County 1998)
- Sonnenfeldt v. Kyriakoudes, 226 A.D.2d 286, 641 N.Y.S.2d 289 (App. Div. 1st Dep’t 1996)
- Brock v. Sitomer, 212 A.D.2d 409, 622 N.Y.S.2d 271 (App. Div. 1st Dep’t 1995)
Honors and Awards
- Recognized by New York Metro Super Lawyers, 2012 - 2018.
Organizations/Memberships
- Litigation Counsel of America, Fellow, by invitation.
- New Jersey Wireless Association, Member.
- American Bar Association, Member of Trial Practice Committee and Real Estate Litigation Committee.
- New Jersey State Bar Association
- Princeton Club of New York
- New York State Bar Association, Commercial Litigation Section
- Federal Bar Council
- Holocaust Survivors Justice Network
Publications
- "Delaware Chancery Court Finds Porzio's Clients To Be The Prevailing Party In A Complex Real Estate Dispute," Commercial Litigation Brief, October 2015.
- "U.S. Supreme Court's Seminal Decision in District of Columbia v. Heller: Has It Changed the People's Second Amendment Right to Own a Gun?" The Police Chief, Vol. LXXX, no. 3, pp 48-55, March 2013.
- "Can E-Mails and Text Messages be Obtained in Civil Litigation Directly from an Electronic Service Provider?," ACC Focus on the New Jersey Chapter, June 5, 2009.
- "Reasonable Noncompete Agreements Are Useful," NJ Biz, Guest Column, October 22, 2007.
- "Are They Still Enforceable? Non-compete Agreements Revisited," New York State Bar Association Journal, Vol. 79, No. 8, October 2007.
- "E-Discovery: 2005 Update," New York State Bar Association Journal, Vol. 78, July/August 2006.
- "The Commercial Division's New Regulations," Porzio Update, July 2006.
- "E-Discovery: 2005 Update," Porzio Update, January 23, 2006.
- "Employers Must Provide Reasonable Accommodations Under the Americans with Disabilities Act to Individuals with Mental Impairments," OCD Foundation, June 2001.
Practice
Business Disputes and Counseling- Corporate, Commercial and Business Law
- Business Divorce
- Intellectual Property
- Litigation
Industries
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