Kelly Foss focuses her practice on assisting clients with navigating complex commercial disputes. She has litigated cases in New York state and federal courts, which have included appeals to the Appellate Division, Fourth Department and to the Second Circuit Court of Appeals. She negotiates settlements, both informally and through mediation, and has experience with arbitration.

Kelly’s experience includes litigating complex contract disputes, disputes over ownership interests in closely-held businesses, disputes involving life settlements, anti-compete clauses and business torts, disputes over material adverse effect clauses, challenges to decisions of various administrative agencies (including under Article 78), insurance coverage disputes, indemnification disputes, breach of fiduciary duty, and partnership disputes, among other business and commercial claims. She also handles estate litigation in Surrogate’s Court, particularly in cases involving family business disputes.

Before joining Lippes Mathias, Kelly was a partner at Harris Beach PLLC.  She also served as a judicial extern to the Honorable Charles R. Beyer at the United States District Court for the Northern District of California.

Representative Matters

Life Settlements Litigation
  • Counsel to a life settlements investor with respect to dispute over large increases to the cost of insurance rate. The dispute involves a claim that the rate adjustment violated the terms of the policy because it was not based upon the enumerated factors, as well as claims for breach of contract and the implied covenant of good faith and fair dealing as a result of the insurance company’s failure to provide to the policy owner documentation and information concerning its review and adjustment of the cost of insurance rate. Negotiated favorable settlement.
  • Counsel to a life settlements investor in connection with the client’s purchase of a $10 million life insurance policy, subject to competing claims in a federal interpleader action in the District of South Dakota, also involving cross-claims for fraud, tortious interference with a contract, RICO conspiracy, unjust enrichment, and disgorgement based upon an alleged stranger-originated life insurance scheme. Conducted extensive discovery, involving approximately 45 subpoenas, multiple successful motions to compel and for sanctions, and numerous depositions, including conducting depositions supervised by a federal magistrate judge. Successfully moved for summary judgment against both competing claimants.
  • Counsel to a life settlements investor in connection with a three-party dispute among two life settlement investors and the life insurance company over a $10 million life insurance policy. The dispute between the two investors involved claims for breach of a credit agreement that provided for financing of premium payments and a transfer of title to the policy as collateral for the premium advances, as well as a separate set of claims related to a transaction concerning the same policy ten years earlier. The dispute with the insurance company related to overcharges on cost of insurance, and the insurance company’s payment of premium refunds to someone other than the policy owner. This three-way dispute spanned two different arbitrations, a New Jersey state court proceeding, and an Alabama state court proceeding. The disputes were resolved through a favorable settlement.
  • Counsel to life settlements investor and securities intermediary in a case involving multiple adverse claimants to proceeds of a $3 million life insurance policy under alleged collateral assignments, which were not disclosed to investor in verifications of coverage. Interpleader dispute involves claims of breach of contract, estoppel, negligent misrepresentation, and protected purchaser and securities entitlement defenses under article 8 of the Uniform Commercial Code.

Closely Held Business Disputes
  • Counsel to owner of two closely-held car dealerships in dispute with former partner over ownership of S corporation stock and associated real property. Former partner filed a complaint asserting claims for breach of contract, breach of fiduciary duty, and conversion of corporate assets, and seeking over $12 million in damages, declaratory relief and injunctive relief. Prevailed at bench trial, successfully having complaint dismissed in its entirety.
  • Counsel to global manufacturer in dispute with customer over customer’s failure to pay for goods (drink chillers) manufactured in accordance with purchase order and design specifications. Pursued claims under the Uniform Commercial Code governing sale of goods, together with common law claims. Succeeded at trial, obtaining money judgment for full amounts due and owing to client plus interest.
  • Counsel to buyer of a $50 million company in connection with indemnification and breach of contract claims against seller stemming from various financial misrepresentations that resulted in an overstatement of revenues, such as a failure to remedy discrepancies between pro forma financials and actual financials, a failure to account for certain expenses, and a failure to disclose certain liabilities. Prepared notice of claim under purchase agreement, and helped negotiate and finalize a favorable settlement agreement.
  • Defense counsel to LLC and majority LLC member sued in Monroe County by a minority LLC member regarding the LLC’s sale of the golf course to a third party. Successfully moved to dismiss damages claim against majority LLC member in her individual capacity, and successfully opposed motion for a preliminary injunction voiding the sale.
  • Counsel to shareholder suing derivatively on behalf of corporation for breaches of fiduciary duty and other business torts based upon misappropriation of business assets and self-dealing.  Prevailed in obtaining order finding corporate fiduciary liable as a matter of law for breach of fiduciary duty, and awarding partial damages in the form of disgorgement of entire salary during years of impropriety under faithless servant doctrine.

Commercial Real Estate Disputes
  • Counsel to closely-held commercial real estate company in dispute with large national retailer over non-payment of rent during government lockdown. Successfully obtained temporary restraining order preventing retailer from conveying any profits generated at retail location to parent company, and barring store from closing and announcing out-of-business sale. Negotiated favorable settlement.
  • Counsel to closely-held commercial real estate company in dispute over mechanic’s lien filed against client’s mall by a contractor. The contractor had allegedly been hired by a tenant who did not pay for work completed. Successfully moved to dismiss on summary judgment claims against mall for breach of contract, account stated, and unjust enrichment, and prevailed on summary judgment on counterclaims for willful exaggeration of the lien under the New York Lien Law. Negotiated favorable settlement whereby client recovered attorneys’ fees and obtained dissolution of the mechanic’s lien.
  • Counsel to closely-held commercial real estate company in dispute over tenant non-payment of rent.  Negotiated favorable work-out transaction terms pursuant to which landlord’s affiliate operating company acquired many of tenant’s business assets.
  • Counsel to real estate holding company and investors in a property serving as a special event venue, restaurant, and hotel in connection with dispute between business associates.  In three separate actions, the parties asserted, among other things, causes of action for foreclosure on a mechanic’s lien, unjust enrichment, breach of contract, willful exaggeration of a mechanic’s lien, slander of title, misappropriation, fraudulent concealment, and breach of fiduciary duty.  Successfully obtained court orders quieting title in favor of real estate holding company, compelling disclosure of QuickBooks accounting records, awarding sanctions for opposing parties’ failure to deliver accounting records, and compelling opposing party to turnover communications with attorney who jointly represented all parties in connection with the liquor license.  Worked with forensic accounting expert to analyze financial and accounting records.

Trusts and Estates Litigation
  • Counsel to four children challenging, in Surrogate’s Court, Monroe County, various aspects of the administration of their father’s estate and living trust. Successfully moved for partial summary judgment, imposing a constructive trust on more than $700,000 that fiduciary had improperly transferred out of the living trust. The pivotal ruling provided clients with leverage to negotiate a favorable settlement of their remaining claims against the fiduciary.
  • Counsel to client challenging the probate of the decedent’s will in Surrogate’s Court, Monroe County on grounds of lack of testamentary capacity and undue influence. Successfully obtained removal of the preliminary executor and the successor executor by demonstrating, through SCPA 1404 discovery and examination, their inappropriate conduct as the decedent’s health care proxies and attorneys-in-fact, and later as fiduciaries of the estate.  Ultimately succeeded in negotiating favorable settlement for client.
  • Counsel to two separate clients defending against objections to probate under SCPA 1404, both involving allegations of lack of testamentary capacity and undue influence. In first case, negotiated favorable settlement following 1404 examination of will witnesses.  In second case, persuaded objectant to voluntarily withdraw all objections to probate.
  • Counsel to child in connection with various disputes arising out of parents’ estates, including accounting proceedings spanning many years, disputes over self-dealing by a fiduciary who controlled marital trust assets and business entities, and allegations of improper expenditures under a power of attorney.  Successfully obtained court order holding that, despite not having been appointed by the court, sibling was a de facto trustee of the marital trust as a matter of law and thus obligated to account.

  • New York
  • 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

  • University of California Hastings College of Law, J.D., summa cum laude, 2012
  • Cornell University, B.A., 2007

Professional Associations 
  • Monroe County Bar Association 
  • Federalist Society, Rochester Chapter 
  • Life Insurance Settlement Association 

Honors & Awards
  • The Best Lawyers in America©, 2021 – Present 
  • Upstate New York Super Lawyers, Rising Star, 2017 – Present
  • The Daily Record, Up and Coming Attorney, 2016
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