A highly accomplished and seasoned litigator, Preston is co-leader of Phillips Lytle’s Business Litigation Practice Team, with a diverse national practice focusing on commercial litigation, business disputes, financial services litigation and class actions.
Preston’s experience includes bet-the-company corporate and commercial litigation, dissolution proceedings, employment termination disputes, unfair competition and controversies involving the sale of goods and services. Preston sustains his reputation for his abilities as a tenacious litigator. His regular clients include a global banking and financial institution and a multinational conglomerate. Preston has achieved landmark decisions for his clients in cases involving banking law, choice of law, restrictive covenants and trade secrets.
Recognized for Litigation in Chambers USA, Preston is noted as a trusted adviser and a tough and sophisticated litigator, who advises his clients with a certain level of practicality. He is creative in settlement when considering alternative means of dispute resolution.
In a landmark decision argued by Preston, the New York Court of Appeals established the rule that the depositor of a counterfeit check is responsible for risk of loss until the settlement becomes final, and that statements concerning “clearing” of a check and funds availability are irrelevant. The Court of Appeals also held that the term “a check has cleared” is ambiguous and not definitive that final settlement had occurred. The Court ruled that the law firm depositor itself was in the best position to prevent fraud, and had a responsibility to know its client. See Greenberg, Trager & Herbst, LLP v. HSBC Bank USA, 17 N.Y.3d 565, 958 N.E.2d 77, 934 N.Y.S.2d 43 (2011).
Preston obtained summary judgment in favor of his client in a highly publicized special proceeding brought by the New York State Office of the Attorney General (“OAG”) under New York Executive Law 63(12). The OAG alleged that his client had repeatedly violated a court rule requiring the filing of Requests for Judicial Intervention and thereby delayed settlement conferences in hundreds of residential foreclosure cases. The OAG’s petition sought damages, an injunction against the running of interest and restitution in each of the underlying cases. In granting Preston’s motion for summary judgment and dismissing the proceeding in its entirety, the court held that there was no illegal act by his client on which the OAG could base its proceeding because the rule in question was an ambiguous procedural rule which confers no substantive protections. The court further held that the rule in question also contains its only remedy for noncompliance, which is for the chief administrative judge to compel a conference. The OAG elected not to appeal the determination dismissing its case, which is now a final decision. See:reuters.com; streetinsider.com
Preston recently obtained dismissal of an international letter of credit claim, Lamda Solutions Corp. v. HSBC Bank USA, N.A. After removal, he obtained dismissal of this high-profile breach of contract suit filed in the United States District Court for the Southern District of New York alleging that his client failed to honor a verbal agreement to assign the proceeds of a letter of credit to facilitate the sale of tens of thousands of tons of Mexican iron ore to China. See:law360.com.
Preston led the defense of another letter of credit case, London Luxury LLC v. HSBC Bank USA, N.A. In that case the applicant, London Luxury, filed suit seeking damages and an injunction to prevent his client from honoring a draw on a letter of credit. After removing the case to federal district court, the team successfully defended against an emergency application for a temporary restraining order and a preliminary injunction. London Luxury appealed the case to the Second Circuit, where the team successfully defended against an emergency motion for a stay. The plaintiff eventually agreed to dismissal of the case, with prejudice.
In Safdieh v. HSBC, Preston assisted in getting his client paid based on another bank’s conversion of the instrument and consequent claim under UCC 3-419. Preston then assisted in obtaining dismissal of the borrower’s claims and the lender’s cross-claims seeking to reverse its payment to his client. See Safdieh v. Citibank, N.A. and HSBC, S.D.N.Y. Case 1:20-cv-03073-CBA-SJB (entry of Jan. 15, 2021).
Preston represented a lender in Donchatz v. HSBC Bank USA, N.A., No. 14-CV-194-JTC, 2015 WL 860760 (W.D.N.Y. Feb. 27, 2015), aff’d, 648 F. Appx. 158 (2d Cir. 2016) (obtaining dismissal of complaint alleging violations of the Fair Debt Collection Practices Act, the Fair Credit Reporting Act, and Unfair, Deceptive, or Abusive Acts or Practices (UDAP) statutes arising from Ohio mortgage loan).
Preston has also successfully defended a number of lending-based Racketeer Influenced and Corrupt Organizations Act (RICO) claims. See, e.g., Mikhlin v. HSBC, 2009 WL 485667 (E.D.N.Y. Feb. 26, 2009) (granting motion to dismiss RICO claims); Singh v. Parnes, 199 F. Supp. 2d 152 (S.D.N.Y. 2002) (same); Ferraro v. Realty USA, No. 1:08-CV-0778 (LEK/RFJ), 2009 WL 1098664 (April 23, 2009) (denying motion to enjoin sale of property pursuant to state court action and scheduling hearing on sanctions against plaintiffs).
Preston represented a lender in Molbayli v. PHH Mortgage Corporation, HSBC Mortgage Services, Inc. and HSBC Bank USA, N.A., Case No. 2:14-cv-05479-SJF-SIL (E.D.N.Y.). There, based on PHH’s alleged illegal assessment of fees for attending residential mortgage settlement conferences, the plaintiffs proposed three claims: (i) a putative class claim under GBL §349; (ii) a putative class claim for money had and received based on unjust enrichment; and (iii) an individual claim under 12 U.S.C. §2605(e), a provision of the Real Estate Settlement Procedures Act (RESPA). Preston moved to dismiss arguing that (i) the plaintiffs cannot evade the lack of a private right of action under the rule cited by repackaging their claims under GBL 349 or common law theories; (ii) the plaintiffs’ claims are barred by the voluntary payment doctrine; and (iii) the plaintiffs’ claims against his clients failed to state a claim irrespective of the bar against repackaging or the voluntary payment doctrine. In response, the plaintiffs withdrew the class claims against his clients and proceeded only under a Fair Debt Collection Practices Act (FDCPA) class claim against PHH and the individual RESPA claim – both of which were settled by PHH without cost to Preston’s client.
Preston represented the lender in Grand Income Tax, Inc. v. HSBC Taxpayer Financial Services, Inc., No. 08-CV-346 (CBA), 2008 WL 5113646 (E.D.N.Y Nov. 25, 2008), obtaining a pre-certification dismissal of a putative class action by Jackson Hewitt franchisees alleging various claims relating to their ability to charge fees for refund anticipation loans.
Rich Prods. Corp. v. Kemutec, Inc., 66 F. Supp. 2d 937 (E.D. Wis. 1999), aff’d, 241 F.3d 915 (7th Cir. 2001) (a highly complex case involving groundbreaking aspects of the UCC battle of the forms and the economic loss doctrine’s damage to other property exception).
In re Nat’l Enters., Inc. v. Clermont Farm Corp., 46 A.D.3d 1180, 848 N.Y.S.2d 420 (3d Dep’t 2007) (successful pursuit of fraudulent conveyance claims).
Huron Group, Inc. v. Pataki, 5 Misc. 3d 648, 785 N.Y.S.2d 827, (N.Y.Sup. June 16, 2004), aff’d for reasons stated below 23 A.D.3d 1051, 803 N.Y.S.2d 465 (4th Dep’t 2005), appeal dismissed 6 N.Y.3d 803, 812 N.Y.S.2d 440 (2006) (successful challenge to actions taken by the Governor under a compact with the Seneca Nation of Indians as being invalid under the N.Y. Constitution).
Hollows at Loch Lea Ass’n, Inc. v. Town of Clarence, 8 A.D.3d 994, 778 N.Y.S.2d 587 (4th Dep’t 2004) (successful challenge to declaratory judgment action seeking an advisory opinion).
Global banking and financial institution – Successful defense of multiple landmark cases including sophisticated and complex actions brought in state and federal courts involving statutory and common law claims, including class actions.
A multinational conglomerate corporation and industrial manufacturer in their U.S.-based equipment finance, commercial litigation and workout/bankruptcy matters, and acting as a coordinating U.S. counsel on numerous nationwide matters.