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Nicholas B. Malito

Counsel
T 212-973-8135
    Mr. Malito concentrates his practice in bankruptcy, litigation, and real estate. He represents clients in matters in federal and state courts, administrative hearings, and arbitration proceedings. He has widespread experience in complex bankruptcy cases where he represents both debtors and creditors. Mr. Malito’s broad civil litigation experience includes prosecuting and defending appeals, business torts, intellectual property disputes, claims for breach of contract, real estate disputes, construction claims, bankruptcy avoidance actions, claims for disability and employment discrimination, and mass tort claims. Mr. Malito represents national and regional clients in commercial leasing and retail property development, from the inception of lease negotiation to retail store launch.

    AREAS OF EXPERIENCE

    Real Estate Transactions

    • Draft and negotiate commercial leases for a Fortune 500 national retailer.  Coordinate construction issues between tenant and landlords.
    • Managed complex sale of mixed-use properties in New York City.  Prepared all corporate documents authorizing the sale.
    Business Litigation
    • Represented American and European technology companies in $10 million dispute against former owners, officers, directors, and a competing entity concerning patent infringement, false advertising, theft of corporate opportunities, and embezzlement. 
    • Defended a student loan servicing company in a $40 million declaratory judgment action in the Southern District of New York concerning alleged default under bond agreement with international banks.  Case was settled on favorable terms. 
    • Represented fitness center owner against former co-owner in New York State Supreme Court to enforce covenant not to compete.  Successfully negotiated settlement to compel compliance with non-compete provision.
    • Represented a Chinese manufacturer in New York State Supreme Court in order to recover payment for goods sold in the United States. Achieved favorable settlement.

    Bankruptcy Litigation and Financial Restructuring

    • Represented former principal and officer of debtor regarding $54 million claim in debtor’s bankruptcy case and in defense of $31 million avoidance action in the District of Delaware.  Achieved dismissal of the avoidance action and allowance of the creditor’s claims against the debtor. 
    • Represented a corporate debtor in all phases of its Chapter 11 bankruptcy case in the Southern District of New York.  Successfully confirmed the debtor’s plan of reorganization.
    • Represented multiple national retailers concerning the nature of their tenancy as prime tenants in a multi-billion dollar tenant-in-common real estate bankruptcy case in the District of Delaware.  Obtained settlement of all claims in favor of the clients. 
    • Successfully defended and favorably settled bankruptcy avoidance actions and claim objections on behalf of multiple defendants in various actions in the Southern District of New York and the District of Delaware.
    • Represented and advised purchasers regarding the sale of debtors’ assets in bankruptcy cases in the Eastern District of New York, the District of New Jersey, and the Western District of Washington.
    • Represented landlords, tenants, and trade creditors in chapter 7, 9, and 11 bankruptcy cases in the Southern District of New York, the Eastern District of New York, the District of Delaware, the District of New Jersey, the Eastern District of Virginia, and the District of Oregon.  Favorably resolved the clients’ claims.
    • Represented a member of the official committee of unsecured creditors and attended committee meetings on behalf of client.  Advised the client regarding the sale of debtor’s properties.

    Real Estate Litigation

    • Represent a commercial landlord on $7.5 million in claims against its tenant for breach of the lease, damage to the premises, and collection of unpaid rent. 
    • Defense of a real estate developer in a construction negligence action in New York State Supreme Court. 
    • Defense of a 61-unit co-op apartment house in New York State Supreme Court regarding a dispute with its master tenant over scope of master lease in light of building’s landmark status.  Successfully defended the co-op against the master tenant’s attempt to obtain a temporary restraining order.
    • Defended a commercial landlord in New York State Supreme Court against a real estate broker who sought a commission for a failed $20 million sale of a shopping center. Obtained a court order dismissing all claims against the client.
    • Represented a Fortune 500 national retailer in $15.5 million dispute with its landlord and the landlord’s lender concerning redevelopment of the shopping center.  The case settled in favor of the client.
    • Defended a large commercial landlord in New York State Supreme Court regarding disputes with tenants over use of the premises.  Negotiated a settlement to dismiss all of the claims against the client.

    Appellate Litigation

    • Represented a commercial real estate developer before the U.S. Court of Appeals for the Second Circuit in an appeal of a trial court judgment for breach of a construction contract.
    • Represented a landlord in an appeal to the U.S. District Court for the Southern District of New York of a Bankruptcy Court order concerning the debtor-tenant’s assumption of an unexpired lease for a non-operating store. 
    • Represented a lender in an appeal to the New York State Appellate Division, Second Department to overturn the trial court’s decision to vacate a judgment of foreclosure.

    Arbitration

    • Successfully defended a 61-unit co-op in an arbitration proceeding before the American Arbitration Association regarding a 14-year rent dispute with the co-op’s master tenant.

    Reported Decisions

    • Genometrica Research Inc. v. Gorbovitski, et al., 2013 WL 394892 (E.D.N.Y. 2013);
    • In re Circuit City Stores, Inc., 447 B.R. 475 (Bankr. E.D. Va. 2009);
    • In re 1633 Broadway Mars Restaurant Corp., 388 B.R. 490 (Bankr. S.D.N.Y. 2008).

    Publications

    • Recent Developments: Section 105(a) of the Bankruptcy Code, 2014 Ann. Surv. of Bankr. Law Part -- § --
    • Recent Developments: Section 105(a) of the Bankruptcy Code, 2013 Ann. Surv. of Bankr. Law Part III § 17
    • Recent Developments: Chapter 9 of the Bankruptcy Code, 2013 Ann. Surv. of Bankr. Law Part III § 36
    • Recent Developments: Section 105(a) of the Bankruptcy Code, 2012 Ann. Surv. of Bankr. Law Part III § 17
    • Recent Developments: Chapter 9 of the Bankruptcy Code, 2012 Ann. Surv. of Bankr. Law Part III § 34
    • Recent Developments: Section 105(a) of the Bankruptcy Code, 2011 Ann. Surv. of Bankr. Law Part III § 18
    • Recent Developments: Chapter 9 of the Bankruptcy Code, 2011 Ann. Surv. of Bankr. Law Part III § 37
    • Recent Developments: Section 105(a) of the Bankruptcy Code, 2010 Ann. Surv. of Bankr. Law Part III § 18
    • Recent Developments: Chapter 9 of the Bankruptcy Code, 2010 Ann. Surv. of Bankr. Law Part III § 34
    • On the Nature of the Transferred Bankruptcy Claim, 12 U. Pa. J. Bus. L. 35 (2009) (co-author)
    • Bankruptcy Update: In re General Growth Properties, Inc., HG&G Update (Fall 2009) (co-author)
    • Recent Developments: Section 105(a) of the Bankruptcy Code, 2009 Ann. Surv. of Bankr. Law Part III § 1
    • On the Nature of the Chapter 7 Bankruptcy Trustee Fee, 18 J. Bankr. L. & Prac. 2 Art. 3 (2009) (co-author)
    • Municipal Bankruptcy: An Overview of Chapter 9 and a Critique of the “Specifically Authorized” and “Insolvent” Eligibility Requirements of 11 U.S.C. § 109(c), 17 J. Bankr. L. & Prac. 4 Art. 2 (2008)
    • Case Note: Eastside Exhibition Corp. v. 210 East 86th Street Corp., 33 N.Y. Real Prop. L.J. 4, 192 (2005)

    COMMUNITY ACTIVITIES

  • Bronx River Alliance, Member
  • Municipal Art Society of New York, Member

     

    Pro Bono

    Mr. Malito was of counsel, pro bono, for a group of law professors appearing as amici curiae before the United States Supreme Court in the case of Travelers Indemnity Co., et al. v. Pearlie Bailey, et al., -- U.S. --, 129 S.Ct. 2195 (2009), and co-authored the underlying brief in support of respondents, available at 2009 WL 526205. 

  • Education

    • St. John’s University School of Law, LL.M., Bankruptcy, 2010
    • St. John’s University School of Law, J.D., 2006
    • Fordham University, B.A., 2001

    Court Admissions

    • U.S. Supreme Court
    • U.S. District Court, Eastern District of New York
    • U.S. District Court, Southern District of New York
    • U.S. District Court for the District of New Jersey

    Bar Admissions

    • New York, 2007
    • New Jersey, 2007
    • Connecticut, 2007
    • Pennsylvania, 2012

    Professional Affiliations

    • International Council of Shopping Centers, Member
    • American Bankruptcy Institute, Member
    • Bar Association of the City of New York, Member
    • Irish Business Organization of New York, President

    Other Distinctions

    • 2018 Recipient, “The Belfast Homecoming Ambassador Medal”
    • Named to the Irish Rising Stars list by the Irish Legal 100, 2017*
    • Irish Top 40 Under 40 2016, awarded by the Irish Echo newspaper*
    • Business Excellence Award, Irish-American Small Business 2014, awarded by the Irish Echo newspaper*
    • Norton Annual Survey of Bankruptcy Law, Contributing Author
    • Served as law secretary to Justice Carol R. Edmead of the New York State Supreme Court
    • Student law clerk to United States Bankruptcy Judge Allan L. Gropper
    • New York Real Property Law Journal, Student Publications Editor

    *No aspect of this advertisement has been approved by the Supreme Court of New Jersey. Further information on methodologies is available via these links.