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Graifman, Brian D.
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Brian D. Graifman

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Practice Areas:

  • Supreme Court Litigation
  • Federal Court Litigation
  • Appeals

Biography

Mr. Graifman has over 30 years of experience with complex litigation. His background includes serving as Law Clerk to Hon. Roger J. Miner at the U.S. Court of Appeals for the Second Circuit and as an associate at one of the nation’s largest law firms. He is top-rated AV-Preeminent by Martindale-Hubbell, based on blind solicitations in the legal industry. He has litigated landmark cases, has won victories against regulators, and has prevailed in leading business cases, including rare vacaturs of arbitration awards. At the Second Circuit, he previously won six reversals in a row as part of seven consecutive wins there. As illustrated by the cases below, he has a record of discerning technical points not immediately apparent to others. See section below of judges commending Mr. Graifman.

Representative Cases:

  • SANCTIONING BANK FORECLOSING ON BEACH-FRONT MANSION:
    U.S. Bank National Association, et al. v. Sirota, 189 A.D.3d 927, 138 N.Y.S.3d 160 (App. Div. 2d Dep’t 2020) (awarding homeowners sanctions against foreclosing bank, including recovery of costs and attorney fees for bank’s delay, and ordering discovery or negative evidentiary inference against bank).
  • PRE-ANSWER DISMISSAL & ON APPEAL – NO JURISDICTION OR TORT:
    Holmes v. Apple, Inc., et al., 797 Fed. App’x 557 (US Ct. of Appeals, 2d Cir. 2019) (affirming dismissal for lack of jurisdiction in New York, including determination of no cognizable tort and denying jurisdictional discovery).
  • SOLE PARTY EXEMPT FROM MEGA-ANTITRUST CLASS-ACTION ORDER:
    In re Payment Card Interchange Fee & Merchant Discount Antitrust Litig., 1:05-md-01720 (U.S. Dist. Ct., EDNY Feb. 13, 2015) (Docket Order) (in largest class action antitrust case ever, by merchants against Visa, Mastercard and other financial institutions, Mr. Graifman obtains for his client, one of the nation’s largest third-party claims filers and division of a public company, an order exempting it from a blanket injunction constraining such filers – the only such order and the only such filer deemed exempt).
  • VACATING ARBITRATION AWARD AS REGULATOR EXCEEDED POWERS:
    Rockwell Global Capital, LLC v. Rotman, 2013 N.Y. Slip Op. 30921(U) (Sup. Ct. N.Y. County Mar. 15, 2013) (FINRA staff exceeded its powers and disregarded its rules by allowing matter to proceed as simplified arbitration). 
  • LANDMARK CASE – REGULATOR CANNOT SUE TO COLLECT FINES:
    Fiero v. FINRA, 660 F.3d 569 (US Ct. of Appeals, 2d Cir. 2011) (FINRA has no authority to enforce collection of its disciplinary fines).
  • CANNOT AVOID INDUSTRY ARBITRATION BY USING FAÇADE FIRM:
    Merrill Lynch Int’l Finance v. Donaldson, 27 Misc.3d 391, 895 N.Y.S.2d 698 (Sup. Ct. New York County 2010) (rejecting use of non-FINRA financing arm to avoid arbitration against former employees, prompting regulator to fine Merrill $1 million).
  • WIN AT SECOND CIRCUIT AGAINST ConEd IN CONTAMINATION CASE:
    Consolidated Edison Co. of New York v. Fyn Paint & Lacquer Co., 334 F. App’x 390, 391 (US Ct. of Appeals, 2d Cir. 2009) (in CERCLA adjacent-property contamination proceeding, affirming enforcement of on-the-record settlement judgment favoring Mr. Graifman’s client).
  • NON-SIGNATORY MUST ARBITRATE:
    Jefferies & Co. v. Infinity Equities I, LLC, 66 A.D.3d 540, 887 N.Y.S.2d 81 (App. Div. 1st Dep’t 2009) (compelling arbitration against customer’s non-signatory principal).
  • LANDMARK CASE – REGULATOR’S STATE SUIT IN WRONG COURT:
    FINRA v. Fiero, 10 N.Y.3d 12, 853 N.Y.S.2d 267 (NY Ct. of Appeals 2008) (vacating, on federal preemption grounds, judgment granted FINRA).
  • RARE VACATUR OF ARBITRATION AWARD:
    Inyx Inc. v. Bartke, 2008 Slip Op. 32953 (Sup. Ct. New York County Oct. 21, 2008) (vacating arbitration award for failure to provide fair opportunity to be heard).
  • LANDMARK CASE – WIN, SETTING STANDARD FOR ARBITRABILITY:
    Bensadoun v. Jobe-Riat, 316 F.3d 171 (US Ct. of Appeals, 2d Cir. 2003) (establishing, on Mr. Graifman’s argument, that arbitrability governed by summary judgment standard; pooled fund investors were not “customers” for purposes of compulsory arbitration and could not compel Mr. Graifman’s broker-client to be party to their arbitration with brokerage firms; investors later settled with firms, including release of Mr. Graifman’s client).
  • APPELLATE WIN ON ILLIQUIDITY DISCOUNT FOR VALUATION:
    In re Vetco, Inc., 292 A.D.2d 391, 738 N.Y.S.2d 599 (App. Div. 2d Dep’t 2002) (in close corporation dissolution valuation, reducing illiquidity discount rate, increasing amount to Mr. Graifman’s client by over $200,000 to $1,023,736).
  • COMMERCIAL TENANT WIN: NOT RESPONSIBLE FOR LEASEHOLD:
    Vesta Indus., LLC v. Auto Am. of New Jersey, Inc., 280 A.D.2d 666, 721 N.Y.S.2d 247 (App. Div. 2d Dep’t 2001) (unexecuted lease unenforceable, favoring Mr. Graifman’s commercial-tenant client, notwithstanding it taking possession, making improvements).
  • DISMISSING AGENCY FINE – NO AUTHORITY FOR ALLEGED VIOLATION:
    Fiero v. SEC, Docket No. 98-4103, 1999 WL 339214, 1999 U.S. App. LEXIS 38873 (US Ct. of Appeals, 2d Cir. Jan. 20, 1999) (vacating SEC award sustaining NASD disciplinary sanctions, as NASD had no authority to subpoena party to interview that member was charged with impeding).
  • LANDMARK CASE & THWARTING SOLICITOR GENERAL AT US SUP CT:
    Tristar Corp. v. Freitas, 84 F.3d 550 (US Ct of Appeals, 2d Cir. 1996) (vacating judgment for short-swing profits, rejecting test established by 9th Circuit), cert. denied, 521 U.S. 1118 (US Sup. Ct. 1997) (rejecting U.S. Solicitor General’s application seeking review, successfully opposed by Mr. Graifman).
  • LANDMARK FREE SPEECH WIN AT US SUP CT:
    Denver Area Educational Telecommunications Consortium Inc. v. FCC, 518 U.S. 727 (US Sup. Ct. 1996) (invalidating portions of Helms Act restricting indecent material on cable TV in part based on plurality opinion adopting argument of Mr. Graifman and co-counsel).
  • SUSTAINING ACTION FOR ONE OF GREAT ESTATES OF CONNECTICUT:
    Jacobs v. Shore, CV139935S & CV940139935S, 1995 WL 519740 & 1996 WL 383329 (Super. Ct. Conn.) (denying defendant’s motion to dismiss, sustaining action for client, owner of one of Great Estates of Connecticut, including claim that defendant’s gate-house home violated estate’s implied negative reciprocal easement, even though such easement not usually recognized in Connecticut, causing case to settle in client’s favor).
  • LANDMARK CASE CHANGING STANDARD FOR RELOCATION CUSTODY:
    Tropea v. Tropea, 87 N.Y.2d 727, 642 N.Y.S.2d 575 (NY Ct. of Appeals 1996) (after leave granted on Mr. Graifman’s application, establishing best interest of child standard in relocation custody disputes).
BAR ASSOCIATION INVOLVEMENT

Mr. Graifman is active at the New York County Lawyers Association (NYCLA), and has served as past Co-Chair of the state Supreme Court Committee (2013-2015), during which he co-hosted NYCLA’s annual Law Day Luncheon, and from 2017-2019 co-hosted NYCLA’s annual reception for new, appointed, re-elected and elevated judges.  He also served on the Board of NYCLA Foundation (2015-2020), and is a past member of the Appellate Courts Committee and the Federal Courts Committee, which awarded him its 2013 David Hinshaw Award for conspicuous and outstanding service.  At the New York City Bar Association, he sat on the Judiciary Committee (2013-2016, 2017-2020), interviewing and rating judges, and previously on the Committee on State Courts of Superior Jurisdiction.  Mr. Graifman has played a role in shaping many court rules and forms.

Mr. Graifman presents on many continuing legal education programs, including conceiving and chairing the Arts & Crafts of Litigation (2017, 2018) (latter program available at NYCLA online and through National Academy of Continuing Legal Education).

Education

  • New York Law School, New York, New York
    • J.D. – February 1988
    • Honors: magna cum laude, Rank 2 of 53 (Midyear)

Bar Admissions

  • New York, 1988
  • U.S. Supreme Court, 1992
  • U.S. Court of Appeals 2nd Circuit, 1990
  • U.S. Court of Appeals 9th Circuit, 2006
  • U.S. District Court Southern District of New York, 1990
  • U.S. District Court Eastern District of New York, 1990
  • U.S. District Court District of Connecticut, 1992
Commendations

“The Court commends Graifman for his zealous and able representation of the Shagalov Parties under what can only be described as challenging circumstances.”

Federal Judge Jesse G. Furman, Huber v. Arck Credit Co., LLC, No. 12-cv-8175 (JMF) (Dec. 11, 2014 SDNY) (ECF Doc. 238).

Mr. Graifman “deserve[s] a gold medal because it was hard work.”

Justice Eileen Bransten, N.Y. Sup. Ct. Commercial Div., Guarino v. Cheek, Transcript of Feb. 20, 2014, Index No. 654191/2013, NYSCEF Doc. 13 (one of 16 cases confirming disciplinary expungements).

“Thank you. And thank you for your work, appreciate your hard work.”

Hon. Cecelia G. Morris, U.S. Bankruptcy Judge, In re Saint Vincents Catholic Medical Centers of New York, Transcript of June 23, 2011, at 10, Index No. 10-11963-CGM (Bankr. SDNY June 23, 2011) (commending Mr. Graifman for assisting physicians with obtaining time to relocate their medical offices upon hospital closing).

“FWIW, Brian, and I say this sincerely, you are clearly among the very, very few industry lawyers that I know who ‘gets it.’  Not only do your write in an incredibly compelling manner, but you also have the unique ability to read a fact pattern and discern the pressure points.  Many lawyers go through their careers as superb scriveners.  Only a few have that unique ability to come up with a novel legal theory.  Without question you operate in rarefied air.  I always enjoy listening to your theories and playing the mental ping-pong that goes with advancing such positions.”

Bill Singer – lawyer, Wall Street veteran, publisher, Forbes contributor (4/21/10).

Representative Published Works
  • Your “Non-Essential” E-Filed Case COVID-Halted? Not Necessarily, New York Law Journal, April 8, 2020 (online), April 10, 2020 (newspaper).
  • Landlords still at risk for hosts’ illegal Airbnb rentals, New York Real Estate Journal, March 7, 2017 (co-author).
  • Hosts Now Liable for Advertising Illegal Airbnb Rentals, But Landlords Still Within Enforcement Cross-Hairs, The Mann Report, March 2017 (co-author).
  • Quoted in in The New York Law Journal on January 9, 2015, Commercial Division Takes Strong Stance Favoring Sanctions for ‘Dilatory Tactics’. (access available to NYLJ subscribers).
  • Quoted in Commercial Division Takes Strong Stance Favoring Sanctions for ‘Dilatory Tactics’, Commercial Litigation Insider, January 7, 2015.
  • Panic over ‘Branic’? Shelter Occupant Entitled to Rent-Stabilized Lease, co-written with Senior Partner David Rosenbaum, featured in The New York Law Journal, October 10, 2014.
  • E-Filing of Sensitive & Confidential Material in New York State Courts: Longing To Feel Secure With Secure E-Filing No More, NY County Lawyer, Oct. 2013, at 6, col. 1.
  • Chapter, Non-Customer “Customers” & Compulsory NASD Arbitration, in Securities Arbitration (Practicing Law Institute Aug. 15, 2002).
  • Chapter, Federal Civil Nonparty Discovery: Things You Need to Know that Nobody Tells You, Winning Cases in Federal Court, NYCLA, April 1 & 8, 2002
  • Chapter, Federal Civil Practice: Pitfalls & Best Practices, 1 Legal Malpractice: Techniques to Avoid Liability, Practicing Law Institute June 30, 1999.
  • Article, ‘Denver Area’ Reveals Struggle Over Free Speech in New Media (Co-Author), N.Y.L.J., at 5, col. 1, Aug. 16 & 23, 1996.
  • Letter, Query on O.J., N.Y.L.J., at 2, col. 6, July 7, 1994.
  • Letter, Taping on Telephone Not Such a Bad Idea, N.Y.L.J., at 2, col. 6, Oct. 6, 1993.
  • Letter, Don’t Banc On It, N.Y.S.B.J., at 8, Sept./Oct., 1993.
  • Letter, Graduated Speed Limits?, N.Y. Times, at 12, col. 6, Oct. 13, 1991.
  • Letter, Judge Jones’ Concurrence Hustled Magazine, Nat’l L.J., at 12, col. 2, July 22, 1991.
  • Instruction Video, 10 Tough Times-Advice to Associates on Handling Some Hairy Situations (Co-Author), Featured in N.Y.L.J. and Court TV, at 1, col. 3, July 16, 1991.
  • Letter, The Judge Not Chosen & Hustler Case, N.Y. Times, at A28, col. 4, Aug. 17, 1990.
  • Letter, Constitution Provides Investigative Needs, Nat’l L.J., at 12, col. 2, June 4, 1990.
  • Guest Column, Put Telephone Right to Privacy on Hold, N.Y.L.J., at 2, col. 2, Apr. 3, 1990.
  • Letter, Readers Should be Thankful for All 4,000, Nat’l L.J., at 12, col. 2, July 4, 1988.
  • Letter, Parody Protection, N.Y. Post, at 28, Dec. 14, 1987.
  • Letter, Time to Sign Off on Parking Meter Matter, Nat’l L.J., at 12, col. 2, Jan. 19, 1987.
  • Article, Ideological Semantics, U.S. Student L. News, at 3, col. 1, Dec. 15, 1986.
  • Guest Column, Disillusionment of a Law Student, N.Y.L.J., at 2, col. 3, June 13, 1986.
  • Letter, Don’t Blame Lawyers for the Crime Problem, N.Y. Post, Nov. 16, 1985.