Ken is an accomplished litigator with notable experience in complex, bet-the-company cases including state and federal class actions, product liability defense, catastrophic personal injury actions, contract and commercial litigations.
Ken’s experience includes bet-the-company corporate and commercial litigation, dissolution proceedings, employment termination disputes and controversies involving the sale of goods and services. In addition to personal injury and wrongful death claims involving product liability, workplace accidents, negligence and environmental exposure experience, he has successfully prosecuted and defended class actions in both state and federal courts, and has experience in challenges to governmental actions, including taxes and assessments, as well as actions for declaratory relief.
Ranked Band 1 for Litigation in Chambers USA, clients describe Ken as “.. a ‘steady hand’ voice of reason and knowledge when assurance is needed. His legal guidance crosses many practice areas and emphasizes relationships and reputation management, in addition to straight (and skilled) legal advice.” Ken is also noted by clients as being “..a good strategist and is particularly gifted at building relationships with all sides. He is considerate and trustworthy. He always provides wise advice.”
Ken represents clients at the trial and appellate level in numerous jurisdictions, including three recent appeals in the New York Court of Appeals involving questions of first impression relating to cross jurisdictional tolling of class actions, pipeline condemnation rights and animal rights involving Happy the Elephant (Bronx Zoo).
On a selective basis, Ken has served as a mediator and has been successful in settling complex cases in New York State Supreme Court, Surrogate’s Court and federal court. Ken also represents clients on high-profile corporate and trust matters.
Listed in Chambers USA: America’s Leading Lawyers for Business, 2016-2023
Top Ranked, 2019-2021
Listed in The Best Lawyers in America®
Named the Best Lawyers® Bet-the-Company Litigation “Lawyer of the Year” in Buffalo, 2015, 2017, 2019, 2021, 2023
Named the Best Lawyers® Personal Injury Litigation – Defendants “Lawyer of the Year” in Buffalo, 2016
Selected for the Upstate New York Super Lawyers® list, 2007-2023
Named Top 50 Lawyer, 2011, 2020-2023
Selected for America’s Top 100 Civil Defense Litigators®, Upstate New York, 2018-2022
Recipient of Western District of New York Federal Court Pro Bono Award, 2022
Named to The United States District Court for the Western District of New York Pro Bono Honor Roll, 2021
Recipient of the National Federation for Just Communities Citation Award, 2020
The New York Bar Foundation, Fellow
Listed in Legal Elite of WNY, Business First of Buffalo and Buffalo Law Journal, 2013, 2015-2018, 2020
Honoree of the New York State Bar Association Empire State Counsel® Program for Pro Bono Work, 2011-2013, 2016-2018, 2020
American Bar Foundation, Fellow
Fellow, Litigation Counsel of America™, 2019
Lawyer of the Year Award, Bar Association of Erie County, 2017
Honored for Participation in the Joint Seminar Program of the Appellate Divisions for the First & Second Judicial Departments, 2012
New York State Bar Association President’s Pro Bono Service Award, Eighth Judicial District 2008
Recipient of the University at Buffalo Philip B. Wels Outstanding Service Award, 2005
Recipient of the NCCJ Brotherhood/Sisterhood Award for Outstanding Leadership in Promoting Goodwill and Understanding in Our Community, 2004
Recipient of the University at Buffalo Law Alumni Association Distinguished Alumnus Award for Leadership by Example as a Private Practitioner, 2002
Selected for America’s Top 100 Attorneys® Lifetime Achievement, Upstate New York
Martindale-Hubbell AV Preeminent Rating
Recipient of the Dress For Success Buffalo Vanguard Award
Awards & Certifications
Education & Admissions
State University of New York at Buffalo Law School, J.D., 1977
State University of New York at Buffalo Engineering School, M.S., Electrical Engineering, 2009
State University of New York at Buffalo Engineering School, B.S., summa cum laude, 1974
Admitted to Practice
U.S. District Court, Eastern District of New York
U.S. District Court, Northern District of New York
U.S. District Court, Southern District of New York
U.S. District Court, Western District of New York
U.S. Court of Appeals, Second Circuit
U.S. Court of Appeals, Third Circuit
U.S. Supreme Court
Hon. Reid S. Moule, New York State Supreme Court, Appellate Division, Fourth Department, 1977-1979
Matter of Nonhuman Rights Project, Inc. v. Breheny (New York Court of Appeals): Successfully obtained affirmance from the Appellate Division, First Department and the New York Court of Appeals following dismissal of petition for writ of habeas corpus filed on behalf of an elephant residing at the Bronx Zoo. Phillips Lytle represented Wildlife Conservation Society, which operates the Bronx Zoo. The five-to-two decision by the Court of Appeals established a uniform rule in New York State that nonhuman animals are not entitled to habeas corpus relief because they are not “persons.”<span
Matter of Chavez v. Occidental Chemical Corp. (New York Court of Appeals): Upon an unsettled question of law certified by the Second Circuit Court of Appeals, Phillips Lytle successfully argued that a putative class action against chemical manufacturer by plaintiffs claiming tortious exposure was time-barred. The decision established that New York recognizes cross-jurisdictional tolling until it is no longer objectively reasonable for absent class members to rely upon the putative class action to vindicate their rights.
Matter of Birjukow v. Niagara Coating Services, Inc., (Fourth Department): Successfully obtained reversal of a New York State Supreme Court decision that denied summary judgment to plaintiff in suit seeking to recover on promissory notes and guarantees.The Appellate Division rejected the defense of “economic duress” for lacking sufficient evidentiary support, and thereby reaffirmed that a defendant cannot raise a triable issue of fact through conclusory, unsubstantiated and internally inconsistent evidence.
Matter of Amalfi, Inc. v. 428 Co., Inc. (Fourth Department): Successfully obtained reversal of a New York State Supreme Court decision to grant summary judgment for defendant in plaintiff’s suit seeking to enforce contractual right of first refusal, and established the rule of tax estoppel, which prevents parties from taking a position in litigation that is contrary to one taken in a tax return.
Matter of Marathon Power LLC v. Public Service Commission (Third Department): Represented energy service company in challenge to Public Service Commission’s order for the company to re-rate customers affected by rate modification, and established the rule that the Public Service Commission does not exceed its jurisdiction by interpreting at-issue provisions in a sales agreement to determine whether a company complied with the agreement and the Uniform Business Practices.
Matter of P. & E. T. Foundation (Fourth Department): Represented attorney trustee in appeal of denial of preliminary injunction, obtaining preliminary injunction from Appellate Division that maintained attorney trustee’s position pending final resolution of the appeal, before decision of Surrogate’s Court was ultimately affirmed on grounds of irreparable harm with the presiding justice dissenting in favor of reversal.
In re P. & E. T. Found., 204 A.D.3d 1460 (4th Dep’t 2022)
Marathon Power LLC v. Pub. Serv. Comm’n, 209 A.D.3d 1245 (3d Dep’t 2022)
Nonhuman Rights Project, Inc. v. Breheny, __ N.Y.3d __, 2022 N.Y. Slip Op. 03859 (June 14, 2022)