Practice areas: Real Estate, Business & Corporate
Licensed in New York since: 1985
Education: Fordham University School of Law
Selected to Super Lawyers: 2006 - 2025 Olshan Frome Wolosky LLP
1325 Avenue of the Americas16th Floor
New York, NY 10019 Phone: 212-451-2273 Email: Thomas D. Kearns Visit website
Details 
Master deal-maker, Tom Kearns navigates the complexities of real estate transactions, structuring, negotiating and closing complicated, high-value deals and co-ownership arrangements.
Tom represents owners, operators and developers in the acquisition, financing, development, ground leasing, and sale of significant properties. His experience includes office towers, commercial condominiums, industrial, healthcare, retail and mixed-use facilities, film studios, land assemblages, air rights acquisitions, and residential properties.
With exceptional skill and technical know-how, Tom carefully crafts deals, structuring joint ownership arrangements in their many forms, from partnerships, LLCs, and joint ventures to tenants-in-common, REITs, syndications and corporate ownership arrangements. Clients benefit from his innate understanding of how best to structure their relationships and establish the parameters of their strategic alliances.
Tom is well versed in structuring programmatic ventures across multiple assets. He also brings deep knowledge of compliance issues and federal and state securities laws, smoothly and efficiently helping clients ensure they meet regulatory requirements. He has led Olshan’s team in closing some of the most impressive deals in recent years including a client's $600 million property sale to a joint venture in what M&A Advisor later named its “Private Equity Deal of the Year.”
Tom is one of Manhattan's leaders in the purchase, turnaround, and sale of office buildings and has handled numerous workouts of ground-leased hotels. He has vast experience in commercial condominium structuring arrangements and has devised sophisticated condominium agreements, including ones for not-for-profit entities that enable them to claim real estate tax exemptions. He also represents professional sports figures and other high-net-worth individuals in their residential property transactions in New York.
First Admitted: 1985, New York
Professional Webpage: http://www.olshanlaw.com/attorneys-Thomas-Kearns.html
Bar / Professional Activity
- New York
- New Jersey
- American Bar Association
- New York State Bar Association
- Board of Directors, Broadway Housing Communities
- Chair, Historic Properties Fund, an affiliate of the New York Landmarks Conservancy
- Board of Directors, New York Landmarks Conservancy
- Real Estate Committee, The Jewish Board of Family and Children’s Services
Transactions
- Represented Kaufman Astoria Studios in the sale of the historic, century-old studios to the joint venture of Hackman Capital Partners and Square Mile Capital Management.
- Represented the owner of a downtown Manhattan office building in its conversion to residential condominiums, including the termination of all office leases, a tax freeze for the property, the condominium offering plan, and unit sales.
- Represented sponsors of a programmatic joint venture with a “co-GP” structure, clawbacks, and well-defined exclusivity and approval processes.
- Represented developers or fee owners in the ground-up developments at the following properties: 72 Sullivan Street, 80 Flatbush Avenue, 57-59 Irving Place, 231 Tenth Avenue, and 206 West 17th Street. Major renovation projects include the 212 Fifth Avenue condominium and various buildings in the “Ring” office portfolio.
- Represented ImmunityBio, Inc., a clinical-stage immunotherapy company, in a definitive agreement to acquire a leasehold interest in 409,000 square feet of ISO Class 5 pharmaceutical manufacturing space in western New York and certain related assets from global pharmaceutical company Athenex, Inc.
- Represented an industry-leading cancer research institution in a long-term ground lease to construct a seven-story building to suit the institution on a parcel located on the Upper East Side of Manhattan. He then created a leasehold condominium for the institution to permit the client to obtain a tax exemption under Section 420-a of New York's Real Property Tax Law. The client then cooperated with the landlord to allow a $130 million mortgage on the fee estate.
- Represented the New York City Partnership Foundation Inc., an affiliate of the Partnership for New York City, pro bono on a bridge loan for the development of a Senior Center on Staten Island by The Metropolitan Council on Jewish Poverty, a nonprofit social services organization, which is calling the center the first affordable housing complex of its kind in the city. See Crain's New York Business for press report.
- Represented Metropolitan College of New York, a college founded in 1964 by educational pioneer Audrey Cohen, in purchasing a commercial condominium to house its growing college programs within a $40 million development known as the Triangle Plaza Hub in the South Bronx. The construction and purchase of the condominium was financed using New Markets Tax Credits. The Real Deal reported on the purchase.
- Represented a joint venture between Kaufman Organization and Principal Life that executed 99-year ground leases on four New York City office buildings from Extell Development in a deal valued at approximately $135 million. The properties are located at 119-125 West 24th Street, 13-15 West 27th Street, 19-21 West 24th Street, and 45-47 West 27th Street. The buildings were part of the portfolio owned until recently by Michael and Frank Ring. The Wall Street Journal, New York Law Journal and The Real Deal reported on the deal.
Pro bono / Community Service
- Represented the New York City Investment Fund pro bono on the loan to Seaview Senior Living Corporation (SSLC) to support the construction of a 132-unit assisted living facility on a 15.4 acre site in central Staten Island.
Educational Background
- J.D., Fordham University School of Law
- M.B.A., Fordham University
- B.A., Fordham University
Scholarly Lectures / Writings
- New York Real Estate Journal recently published an article authored by Co-Chair of Olshan’s Real Estate Law practice Thomas Kearns entitled “Does a Deal with Taylor Turn into a Deal with Travis?” (The article is also available on our blog.) In the article, Tom uses a headline-making engagement—Taylor Swift and Travis Kelce—to highlight a critical issue in real estate investment LLCs: the assignment of membership interests and the legal distinction between economic rights and governance rights. “Generally,” Tom explains, “a mere assignee of an LLC interest get the economic benefits of the interest but do not automatically enjoy all of the other rights of the assigning party unless formally admitted to the LLC as a member, either by the consent of the LLC’s manager or members or through an express provision of the LLC agreement. Some LLC agreements have assignment provisions that permit transfers to family members without any consent to permit estate planning and to encourage a long-term hold of the asset. The definition of family in LLC agreements can vary but often includes spouses.” While some agreements permit family assignments without consent for estate planning purposes, sponsors are increasingly drafting provisions that limit assignees to economic rights only and exclude voting or governance rights unless formally admitted as members. "While case law is confused and depends on the exact wording of the clause,” Tom writes, “restrictions on the admission of assignees should be enforceable. Of course, circumstances may vary.” He stresses that existing agreements should be reviewed carefully to address potential exposure, especially regarding voting rights, books and records access, and indemnification provisions (including “fees on fees” claims). Managing these issues effectively, Tom concludes, requires a mix of careful drafting, thoughtful member consent processes and proactive planning to avoid unintended partnerships: “The decision to admit an assignee may be as much political as legal and may depend on the relationship of the business partners, the other deals they have together and the level of concern over approval of future decisions. But managers and members of LLCs should be cognizant of the issues involved and that there may be a difference between being a mere assignee and an admitted member depending on the exact wording of the LLC agreement.”, Author, Does a Deal with Taylor Turn into a Deal with Travis?, New York Real Estate Journal, 2025
- New York Real Estate Journal recently published an article authored by Co-Chair of Olshan’s Real Estate Law practice Thomas Kearns entitled “LLC’s Manager’s Liability to Members.” In the article, Tom explores the confusion surrounding the liability of the person appointed manager of a New York limited liability company. He explains that LLC managers are liable to an LLC’s members for: 1) their fraud, 2) a breach of any express provisions of the LLC agreement, and, even if not expressly stated in the LLC agreement, 3) any self-dealing wherein the manager receives inequitable payments that should have been distributed to the LLC’s members as profits. “Generally,” Tom writes, “LLC managers are entitled to exercise their business judgment in the management of the LLC’s business. A major disagreement with the members, even a majority of the members, is typically not a breach of any duty by the manager unless the manager’s decision violates an express provision of the LLC agreement.” He goes on to explain that generally, the manager is not liable for mere mistakes in the operation of the business. He cites re Transfix Prods. LLC, a recent bankruptcy case, to illustrate this point. The case concerns the manager of an LLC that filed for bankruptcy who was sued by the court-appointed bankruptcy trustee for gross negligence and breach of duty to the members and the LLC’s creditors. The manager created the LLC and raised capital from investors to put on an art exhibition that eventually underperformed. However, unable to prove any fraud or bad faith by the manager, the court held that he was protected by the exculpation and indemnity clauses in the LLC agreement. “In other words,” Tom writes, “even where the business was a disastrous failure, the manager is not liable unless he did something fraudulent or in bad faith.” He concludes that, “Court decisions are mixed in terms of analyzing the allegations given the specific terms of the LLC agreement and the facts of the case giving judges wide leeway to view the equities of the situation. But the Transfix decision cited above is a recent example which confirms that mere business judgement mistakes are not actionable absent any breach of an express provision in the LLC agreement.”, Author, LLC’s Manager’s Liability to Members, New York Real Estate Journal, 2025
- New York Real Estate Journal recently published an article authored by Co-Chair of Olshan’s Real Estate Law practice Thomas Kearns entitled “Is a Bank Required to Take a Deed in Lieu?” In the article, Tom explains that non-recourse loans are the market standard in sophisticated New York real estate deals. These loans allow the lender to recover only from the property itself, not from the borrower or their principals, except in cases of "bad acts" such as fraud, bankruptcy or environmental violations, which are covered by carve-outs. Lenders typically cap the loan at a percent of the appraised value to protect against potential drops in property value, and if property value falls below the loan amount, the lender absorbs the loss after borrower equity is depleted. “The theory is that by limiting the loan to value ratio at the time of the making of the loan the lender eliminates or limits the loss if the value of the property diminishes,” Tom writes. Once equity is lost, borrowers often have no incentive to manage the property. Lenders’ main option, although costly, is foreclosure. Tom cites a recently filed action in New York (New West Harlem Owner LLC v. SIG RCRS A/B MF 2023 Venture LLC) as an example, wherein the borrower seeks to hand over the property via deed-in-lieu of foreclosure, but the lender refuses, asserting that it has the right to elect its remedies, even though it hasn't chosen to foreclose. “As a policy matter,” Tom asks, “should New York law require the lender to accept a deed in lieu in these circumstances? Logic would indicate that it should since there is no other remedy that the lender has.” This case raises significant questions about borrower and lender rights in non-recourse loan situations, and its outcome could influence future policy or contract drafting. Tom concludes: “If a non-recourse lender won’t take a deed in lieu, won’t agree to a short sale and won’t foreclose, what is a borrower to do?”, Author, Is a Bank Required to Take a Deed in Lieu?, New York Real Estate Journal, 2025
- New York Real Estate Journal recently published an article authored by Co-Chair of Olshan’s Real Estate Law practice Thomas Kearns entitled “What Is Estoppel?” “In real estate,” Tom writes, “the most common use of the term is in connection with lease estoppels. Every sophisticated lease has a provision which requires the tenant to deliver an estoppel certificate as to various matters including a recital of the documents that make up the lease, that the lease has not been further amended, the current rent, that the landlord is not in default, etc.” He further explains that estoppel clauses are common in mortgage modification agreements and in amendments to LLC agreements. “Estoppel provisions with a knowledge qualifier are a common way for the parties to proceed with agreements without a full release but with comfort that the managers will not be hit with a lawsuit the day after the amendment is signed,” Tom writes. “These types of estoppel provisions are particularly helpful when there is existing tension or a history of litigation or claims between the parties or their affiliates.” He concludes that “Sophisticated real estate operators should insist on the appropriate estoppel provisions in the right circumstances.”, Author, What Is Estoppel?, New York Real Estate Journal, 2025
- New York Real Estate Journal recently interviewed Co-Chair of Olshan’s Real Estate Law practice Thomas Kearns in an article entitled “Top 2024 Legal Developments Affecting New York’s Commercial Real Estate Industry.” In the article, Tom discusses a few legislative and regulatory highlights of 2024 that will continue to affect New York’s commercial real estate industry, including: “City of Yes,” the city’s large and complex revision to local codes to promote construction of new housing; New York’s amended LLC transparency law, a copycat statute of the federal LLC transparency statute that continues to be litigated; the National Association of Realtors’ (NAR) settlement in Missouri, which will affect the New York market as many national brokerage companies have opted into the settlement; the Good Cause Eviction Law which now governs New York City and any other jurisdictions that opt in; and the two recent decisions—one in Delaware (Gurney-Goldman v Goldman) and one in New York (Weinstein v Wallace)—that have raised doubts about the longstanding “pick your partner” principle in LLCs., Author, Top 2024 Legal Developments Affecting New York’s Commercial Real Estate Industry, New York Real Estate Journal, 2025
- Co-Chair of Olshan’s Real Estate Law practice Thomas Kearns and Corporate partner Kenneth Silverman authored an article in Law360 entitled “Lights, Camera, Real Estate: Preparing For Film Facility M&A.” In the article, Tom and Ken discuss the unique aspects of buying and selling film and TV production facilities. They write that while the financing of movie and TV studios may follow a traditional real estate development track, typically secured by a mortgage on the real property, there are some key differences in the sale or acquisition of a production facility. While typical commercial property sales are accomplished as asset sales, operating businesses such as studios are often structured as mergers. “Mergers do bring some complications,” they write. “For example, all liabilities of the existing business bind the buyer. A merger agreement can, however, provide extensive representations about the operations of the business, its financial conditions and statements and known or potential liabilities.” Obtaining representation and warranty insurance (RWI) “can significantly reduce friction between the buyer and the seller….” Production facility transactions often require due diligence regarding local economic development and tax credit regulations because municipalities generally treat film production facilities as local generators of wages and other income resulting in a net gain over the cost of the economic development program or tax credits. “Since a buyer will typically want to acquire all aspects of the business that takes place at the production facility, each separate property parcel and segment of the operating business and its ownership needs to be reviewed by all parties and an allocation of values must be done for several reasons,” Tom and Ken explain. “A property development idea gestated by a real estate investor may, over time, transition…into a full-fledged operating business with an exit strategy that has more in common with typical non-real estate operating companies than the usual real estate asset sale.”, Co-Author, Lights, Camera, Real Estate: Preparing For Film Facility M&A, Law360, 2024
- New York Real Estate Journal recently published an article authored by Co-Chair of Olshan’s Real Estate Law practice Thomas Kearns entitled “Borrower Permitted to Prove Delays and Bad Faith by Lender and Servicer.” In the article, Tom uses a series of decisions in New York County Supreme Court (Newage Garden Grove LLC v. Wells Fargo Bank, N.A.) involving a California hotel to highlight the risks to lenders and their servicers when they delay negotiations over defaulted loans. “The borrower still has a long road ahead to prove the claims, and the extent of the damages if the claims are proven,” he writes, “but the case underscores the litigation risks lenders face when they delay or obstruct negotiations with borrowers.” Tom goes on to explain, “The delays seemed to trouble the court primarily due to the continued accumulation of default interest and servicing fees. As practitioners know, the accrual of default interest is a potent weapon in the hands of a lender, but courts occasionally see the injustice of extended accrual periods.” He concludes: “Parties involved in loan workouts and their counsel should review the Newage series of decisions carefully. While lenders have much power in these situations, courts will apply guardrails when they sense inequitable conduct.”, Author, Borrower Permitted to Prove Delays and Bad Faith by Lender and Service, New York Real Estate Journal, 2024
- New York Real Estate Journal recently published an article authored by Co-Chair of Olshan’s Real Estate Law practice Thomas Kearns entitled “LLC Interest Forfeiture is Disfavored.” , Author, LLC Interest Forfeiture is Disfavored, New York Real Estate Journal, 2024
- New York Real Estate Journal recently published an article authored by Co-Chair of Olshan’s Real Estate Law practice Thomas Kearns entitled “Subchapter V Bankruptcy Filings for Multi Property Real Estate.” (The article is also available on our blog.) In the article, Tom explains that the benefits of using bankruptcy laws to workout distressed real estate include the speed of bankruptcy courts as opposed to New York State courts at ordering properties sold and the efficacy of the statutory system in resolving all open claims. Tom draws particular attention to Subchapter V of the Bankruptcy Code, which was passed in 2019: “The core intent of Subchapter V is to allow for a more efficient reorganization process, enabling small businesses to negotiate with creditors, restructure debts, and continue operations with reduced disruption.” He explains that it “creates a new streamlined path that deserves attention from property owners and lenders involving workouts where more than one property is owned and liabilities don’t exceed $7.5 million.” “Subchapter V,” Tom continues, “specifically designed for small business debtors, simplifies the bankruptcy process, reducing costs and time. Importantly, Subchapter V is not available for single asset real estate debtors.” Since single asset debtors are not permitted to use Subchapter V, Tom cites two recent court decisions— In re Evergreen Site Holdings, Inc. and In re Nuovo Ciao-Di, LLC—to illustrate whether a particular business may or may not qualify. Tom concludes that “the use of Subchapter V small business bankruptcy filing holds potential for real estate ventures with multiple property holdings facing financial distress. As we navigate the complexities of the current real estate market, entrepreneurs should not overlook the bankruptcy tools at their disposal.”, Author, Subchapter V Bankruptcy Filings for Multi Property Real Estate, New York Real Estate Journal, 2024
- Real Estate Agent Magazine recently published an article authored by Co-Chair of Olshan’s Real Estate Law practice Thomas Kearns entitled “Steps that Lead to Creative Commercial Real Estate Deals.” In the article, Tom explores innovative strategies for navigating today's commercial real estate landscape. Tom discussed transactions involving office tenants investing in the building's landlord simultaneously with a lease signing and other strategies to resolve valuation issues caused by the interest rate environment. He offers practical advice including creative use of bankruptcy laws and working with brokers and others to gain detailed knowledge of the current market., Author, Steps that Lead to Creative Commercial Real Estate Deals, Real Estate Agent Magazine, 2024
- New York Real Estate Journal recently published an article authored by Co-Chair of Olshan’s Real Estate Law practice Thomas Kearns entitled “Bifurcating Management and Economics in LLCs” (subscription required). “Limited Liability Company (LLC) statutes are known to expressly permit business people to separate the right to manage a particular LLC from the right to receive the profits of the business,” Tom writes. “LLC managers may be appointed who have no or limited rights to receive the profits of the LLC.” However, will a court upend the careful plans of the business people and grant management rights to the majority profits holder in the name of equity? The recent Bich v Bich New York court opinion interpreting Delaware LLC law answered with a resounding "No." While the facts of the case seemed favorable to the holder of a 99% interest in profits, the court flatly refused to grant the 99% holder any management rights. “Management provisions in LLC agreements are often written to permit third party managers who hold no (or minority) economic interest to continue to manage the LLC no matter what happens to the economic interests in the LLC,” Tom explains. Examples include: where for IRS Section 1031 exchange purposes, parties use separate LLCs to purchase a replacement property as tenants in common with different economic interests among the TICs but where all of the LLC TICs grant management rights to one party; the express or implied promise to a younger partner to permit him or her to manage the LLC after the death of the older majority profits holder; and where the seller of a part of an assemblage of properties wants to keep ownership of a share of the new project but the overall project developer insists on full management rights. He concludes, “The Bich v Bich precedent should assist business people and courts in confirming that those arrangements are all acceptable even where full clarity may be lacking.”, Author, Bifurcating Management and Economics in LLCs, New York Real Estate Journal, 2024
- New York Real Estate Journal (subscription required) recently interviewed Co-Chair of Olshan’s Real Estate Law practice Thomas Kearns in an article entitled “Top 2023 Legal Developments Affecting New York’s Commercial Real Estate Industry.” In the article, Tom discusses a few legislative and regulatory highlights of 2023 that will continue to affect New York’s commercial real estate industry, including: regulations on the implementation of the federal Corporate Transparency Act, which forces most limited liability companies to separately disclose ownership of the LLC in a federal filing; New York’s Transparency Act, an LLC ownership disclosure regime passed by New York’s legislature similar to the Federal act; the ruling in 260-261 Madison Ave LLC v. WeWork 261 Madison LLC, where the New York Supreme Court permitted the landlord to pursue a claim against the WeWork parent company despite the parent company not appearing on the lease nor serving as guarantor; amendments to the General Business Law that limit retainage for construction contracts for $150,000 or more to 5% of the contract amount; and more., Top 2023 Legal Developments Affecting New York’s Commercial Real Estate Industry, New York Real Estate Journal, 2024
- New York Real Estate Journal recently published an article authored by Co-Chair of Olshan’s Real Estate Law practice Thomas Kearns and real estate partner Hyman Kindler entitled “Contract Vendee Title Insurance” (subscription required). In the article, they discuss how buyers and sellers allocate the risk of a recorded title exception first being discovered after executing a real estate contract of sale. “A contract vendee title insurance policy (the premium for which is calculated only on the amount of the contract deposit, and is paid for on the day the contract is signed) shifts the risk onto the title company by insuring a buyer as to the state of title as of the day the contract is executed. The insured amount is equal to the contract deposit,” they explain. Tom and Hymie proceed with an example of the appeal to the seller of shifting the risk to the title company: “We were involved in one transaction where the seller kept insisting that the buyer take subject to all matters of record, but the buyer kept insisting that it was not going to risk its significant deposit on the accuracy of the title report it had obtained (even though the report was from its title company). The resolution: seller paid the premium for the buyer’s vendee policy!” Furthermore, since there are often several other requirements for issuance of a vendee policy in addition to payment of the premium, they suggest to “include a clause in the contract that the funded deposit does not become the contract deposit unless seller has made the required deliveries, and get the title company involved early.” They conclude, “Contract vendee polices can be a useful tool in resolving certain title negotiations between buyers and sellers, and, while beyond the scope of this article, can also be useful when navigating and negotiating complicated title insurance matters with title insurance companies prior to contract signing.”, Contract Vendee Title Insurance, New York Real Estate Journal, 2023
- New York Real Estate Journal recently published an article authored by Co-Chair of Olshan’s Real Estate Law practice Thomas Kearns and real estate partner Hyman Kindler entitled “Non-Imputation Title Insurance” (subscription required). The article discusses an “investor’s” title insurance policy when a real estate investor purchases an ownership interest in existing entities that own commercial real estate rather than acquiring the property by deed. This policy insures the purchaser of the equity instead of the entity that owns the real estate. “If there was a recovery under a claim made such a policy,” Tom and Hymie write, “only the purchaser would receive the insurance proceeds (and not the entity that owns the real estate). However, in either a partial ownership purchase or a purchase of 100% of the ownership interests, title insurance policies typically have a big hole in these circumstances: all New York title policies have an exclusion for the knowledge of the insured.” The issuance of a non-imputation endorsement by the title insurer, which removes the knowledge exclusion but is heavily dependent on the facts and circumstances of the transfer and seller, resolves this problem. Because the title insurer often insists on a detailed affidavit from the seller and often insists on an indemnity to back up that affidavit from a credit-worthy individual or entity even to the extent of insisting on financial disclosure from the indemnitor, a non-imputation endorsement needs to be carefully negotiated. Tom and Hymie go on to discuss the factors that impact the structuring of the transaction and the possible policy. They conclude that, “While navigating non-imputation issues requires diligence, non-imputation coverage can be key to successfully concluding a transaction.”, Non-Imputation Title Insurance, New York Real Estate Journal, 2023
- New York Real Estate Journal published an article authored by Olshan Real Estate partner Thomas Kearns entitled, “Online Real Estate Auctions” (subscription required). In the article, Tom assesses the benefits and the risks of online real estate auctions, using a recent experience with a client as an example. Despite its faults, the overall process was efficient, Tom concludes: “As refinements come to the online bidding process, I can see it becoming a valuable tool particularly for smaller and middle market transactions.”, Online Real Estate Auctions, New York Real Estate Journal, 2023
- New York Real Estate Journal recently published an article authored by Olshan Real Estate partner Thomas Kearns and Litigation counsel Joseph Weiner entitled, “Guaranty Law Held Unconstitutional” (subscription required). The article discusses Melendez v. City of New York, in which the Southern District of New York declared unconstitutional N.Y.C. Admin. Code § 22-1005, a COVID-era law enacted in May 2020 that rendered personal guaranties for certain kinds of commercial leases unenforceable if the tenant’s default occurred between March 7, 2020 and June 30, 2021. After the SDNY initially granted New York City’s motion to dismiss, the Second Circuit reversed and sent the case back to the SDNY, believing certain features of the law to be problematic under the Contract Clause. “In particular,” the authors explain, “the Second Circuit noted that the law (i) is not temporary, but permanently extinguishes the covered obligations, (ii) is not conditioned on whether the tenant had to shut down its business, or whether the business will reopen, (iii) allocates the expense to a discrete group (landlords), (iv) is not conditioned on need, and (v) does not compensate landlords for their losses.” Following remand, the SDNY granted the plaintiffs’ motion and declared the law unconstitutional. “We expect the city to appeal the SDNY ruling,” the authors note. They conclude that, “Although the federal court’s decision is not binding on state courts, it is ‘useful and persuasive authority.’", Guaranty Law Held Unconstitutional, New York Real Estate Journal, 2023
- Olshan Real Estate partners Nina Roket and Thomas Kearns published an article in Best Lawyers entitled “Big Updates in the Big Apple.” The article focuses on the New York City commercial real estate market for landlords, investors, and developers post-COVID-19. “Office leasing is showing signs of activity,” Nina and Tom write, “but office building valuations remain in flux as investors question lease renewals in the short term and the recent interest rate increase’s impact on prices. Between the rise of remote work and a surge in e-commerce, the overall trajectory of commercial markets poses both new opportunities and challenges.” They explain that, while many employers are not altering their part-time pandemic office attendance schedules, they still generally want employees together on certain days, thus necessitating the same office space they required before the pandemic, leaving office investors awaiting further clarity. Retail rentals, too, have experienced similar uncertainty. At the same time, residential rentals in New York remain strong: “New York remains very popular with tech, finance, legal, media and other workers, particularly young workers.” Commercial properties that are industrial, they point out, will likely also continue to grow given the proliferation of e-commerce. “Perhaps the most fascinating development in New York,” Nina and Tom write, “is the current political dance between regulations, politicians and the industry about re-positioning older properties, particularly office and outmoded hotels, to purely residential use to help with affordable housing and reinvigorate business districts.” They conclude that not-for-profit affordable housing developers may see increased availability in development sites, writing, “City, State and federal affordable housing financings have become more accessible since there is less of a ‘sign here now with a big non-refundable deposit’ market.”, Big Updates in the Big Apple, Best Lawyers®, 2023
- Olshan real estate partner Thomas Kearns and employment partner Michael Passarella authored a February 10 article for Bloomberg Law (subscription required) that focuses on the growing popularity of the AI tool ChatGPT and its legal implications in the workplace. The authors examine the ethical implications and other legal areas related to the increased use of AI in the workplace and consider the potential benefits AI could have for the legal industry. When predicting the future of AI in the legal industry, Tom and Mike write, “The possibility that AI may help lawyers service a larger cross-section of clients efficiently is very appealing. The biggest challenge for law firms will be to create and maintain a database of research and document precedents so when document management vendors add AI to their offerings, the database of approved research and deal documents can be analyzed and culled.”, ChatGPT and AI Will Advance Efficiencies in the Legal Industry, Bloomberg Law, 2023
- New York Real Estate Journal recently interviewed Olshan Real Estate partner Thomas Kearns in an article entitled “2022 Year in Review.” In the article, Mr. Kearns discusses handling a major upstate pharma-factory $40 million ground lease acquisition and upgrade in 2022 and the ongoing balance between hybrid models and a return to in-office work., 2022 Year in Review, New York Real Estate Journal, 2022
- New York Real Estate Journal recently published an article authored by Olshan Real Estate partner Thomas Kearns entitled, “Commercial Leasehold Condominium Basics - Part 2” (by subscription). The article is a follow-up to Tom’s 2018 article, which outlined the basics of commercial leasehold condominiums but was limited to a not-for-profit’s (NFP) use of an entire building. The current article focuses on the basic structure of how to get the benefits of Section 420-a of N.Y.’s Real Property Tax Law when an NFP occupies only a portion of a building. After a landlord ground leases a property to a “Newco” and the Newco submits the leasehold interest to a condominium regime, Tom explains, the Newco then deeds the unit to the NFP that will occupy the unit. “Note,” Tom reminds, “that the deed transfers title to the leasehold condominium unit for the full term of the leasehold estate. By operation of law, the NFP will lose title to the condominium unit at the expiration of Newco’s ground lease. The NFP must be ready to own the unit and be obligated for condominium common charges for the life of the ground lease.” Navigating the legal and financial aspects of a 30-year leasehold condominium which would normally be a 30-year lease also warrants considerable skill: “In sum, the financial aspects of the relationship need an in-depth analysis and structure which is often done by a sophisticated broker and/or outside consultant in consultation with the lawyers and after a full analysis of how the building operates.”, Commercial Leasehold Condominium Basics - Part 2, New York Real Estate Journal, 2022
- New York Real Estate Journal recently published an article authored by Olshan Real Estate partner Thomas Kearns entitled, “Alienation Restraints” (by subscription). The article discusses restraints on alienation and the rule against perpetuities. Tom explains that the rationale behind the rule against perpetuities is that “property needs to be freely transferable for the good of society and having lots of restrictions will harm the overall community.” Although some restrictions are permitted, those restrictions must be reasonable, blanket no sale perpetual restrictions are prohibited. This forces property lawyers to be creative and test the bounds of reasonableness. Two New York cases have established some guidelines on what is permissible, Demchick v. 90 East End Avenue Condominium (2005) and the case that enabled the Symphony Space Theater on Manhattans’ Upper West Side to profit significantly from an unenforceable option. Tom notes that, “Section 9-1.1 of New York’s Estates Powers and Trust Law (EPTL) gives statutory limits to the time periods for future estates in the statute as 21 years after the named lives being at the time of creation of the interest plus the lives of any child of the named person conceived before the creation of the option.”, Alienation Restraints, New York Real Estate Journal, 2022
- New York Real Estate Journal recently published an article authored by Olshan Real Estate partner Thomas Kearns entitled, “Landmarked Churches Need Help”. The article discusses how the recent hardship filing by the landmarked Park-West Church highlights the difficulties faced by landmarked churches. Although a few hardship applications have been granted, the most well-known hardship application, for St. Bart’s on Park Avenue in Manhattan, was denied. Kearns states that, "A denial of the Park-West hardship application will no doubt bring a court challenge". With the decision to deny the hardship application of St. Bart’s as a recent example, New York courts may uphold a decision by The Landmarks Preservation Commission to deny the application. Kearns suggests that a similar mechanism to one adopted to help landmarked Broadway theaters could be created for landmarked churches, relieving the hardship that many landmark churches face. , Landmarked Churches Need Help, New York Real Estate Journal, 2022
- New York Real Estate Journal recently published an article authored by Olshan Real Estate partner Thomas Kearns entitled, “Concerning Seasonal Rentals.” The article discusses the amendment of New York’s General Obligations Law Section 7-108 in September 2021 to specifically exempt seasonal rentals from the one-month security deposit limit but with some caveats., Concerning Seasonal Rentals, New York Real Estate Journal, 2022
- New York Real Estate Journal recently published an article authored by Olshan Real Estate partner Thomas Kearns entitled “Top 2021 Legal Developments Affecting New York’s Commercial Real Estate Industry.” Highlights include the ongoing litigation over the New York City law cancelling certain lease guaranties, The Gap, Inc., v. 170 Broadway Retail Owner, LLC, perhaps the final appellate court ruling striking down creative arguments made by commercial tenants to get out of paying rent during the pandemic, cash out LLC merger litigation and the tightening residential condo loan terms in light of the Surfside collapse. , Top 2021 Legal Developments Affecting New York’s Commercial Real Estate Industry, New York Real Estate Journal, 2022
- Chapter 1 of Bergerman and Roth's New York Real Property Forms Annotated, 669 pages., "Contracts of Sale and Exchange and Related Actions", Matthew Bender & Co., Inc., Real Estate
- New York Real Estate Journal recently published an article authored by Olshan Real Estate partner Thomas Kearns entitled “The Underappreciated Estoppel.” The article discusses a recent Illinois case that highlights the benefits of obtaining an estoppel certificate from a counter-party., Author, The Underappreciated Estoppel, New York Real Estate Journal, 2021
- New York Real Estate Journal recently published an article authored by Olshan Real Estate partner Thomas Kearns entitled “Are Collapses of Multi-Owner Properties Inevitable?” The article discusses the recent collapse of a condominium building in Miami and how being a multi-owned property created issues in its management., Author, Are Collapses of Multi-owner Properties Inevitable?, New York Real Estate Journal, 2021
- New York Real Estate Journal recently published an article authored by Olshan Real Estate partner Thomas Kearns entitled “Annual Interested Director/Manager Reports for Condominiums and Cooperatives.” The article discusses the Section 727 of the Business Corporation Law (BCL) that was passed in New York in 2018 that requires the managers of condominiums and cooperative housing to notify condominium unit owners and housing cooperative shareholders of any contracts with a third party., Author, Annual Interested Director/Manager Reports for Condominiums and Cooperatives, New York Real Estate Journal, 2021
- New York Real Estate Journal recently published an article authored by Olshan Real Estate partner Thomas Kearns entitled “Commercial Lease Clauses for Pandemics.” With a year into the COVID-19 pandemic, the article provides ideas for drafting lease clauses agreeable to both landlords and commercial tenants with negotiating power in light of emergency laws that expressly prohibit the use of the space for the intended purpose., Author, Commercial Lease Clauses for Pandemics, New York Real Estate Journal, 2021
- New York Real Estate Journal recently published an article written by Olshan Real Estate Partner Thomas Kearns entitled “Top 2020 Legal Developments Affecting NY’s CRE Industry.” In this article Mr. Kearns discussed a few of the legal developments that took place during 2020 that would have a lasting impact on New York’s commercial real estate industry. , Author, Top 2020 Legal Developments Affecting NY’s CRE Industry, New York Real Estate Journal, 2021
- LexisNexis published a commentary entitled "Drafting General Releases After Centro: How to Preclude or Preserve Future Claims of Fraud and Breach of Fiduciary Duty" written by Eric L. Goldberg, Thomas D. Kearns and Thomas J. Fleming. The article addresses a recent New York Court of Appeals decision overruling the First Department's ruling in Blue Chip Emerald LLC and highlighting New York's enforcement of general releases between fiduciaries., Co-Author, Drafting General Releases After Centro: How to Preclude or Preserve Future Claims of Fraud and Breach of Fiduciary Duty, LexisNexis Emerging Issues Commentary 2011 Emerging Issues 5827
- The New York Law Journal (subscription required) published a second article by Olshan Partner Thomas Kearns focusing on issues raised by the federal Visual Artists Rights Act of 1990 (VARA), which protects visual artists' "moral rights" by prohibiting the destruction of "visual art," including paintings, drawings, sculptures or photographs, of "recognized stature" that are used to market hotels, offices and apartment buildings., Author, Understanding Artists' Rights in Contracts for Building Art, New York Law Journal
- The New York Law Journal featured an article authored by Thomas D. Kearns on the Interstate Land Sales Disclosure Act Update of 2013. The update exempts condominium developments from the registration requirements under the Interstate Land Sales Act (ILSA), but it does not immunize sponsors from liability under ILSA's anti-fraud provisions. Because of the potential advantages ILSA offers to plaintiffs over New York law, sponsors should prepare for claims brought under its anti-fraud provisions. The article explores the benefits to plaintiffs of ILSA's anti-fraud provisions over claims under New York law, and discusses potential defenses to such claims including New York's law of specific disclaimers., Author, Interstate Land Sales Act, Fraud and Specific Disclaimers, New York Law Journal
Honors
- Elected a Fellow of the American College of Real Estate Lawyers (ACREL), class of 2015, American College of Real Estate Lawyers (ACREL)
- Named a “Leading Lawyer” in Real Estate: Mainly Dirt by Chambers USA, 2022-2025, “Leading Lawyer” in Real Estate: Mainly Dirt, Chambers USA
- Recognized in The Best Lawyers in America® for Real Estate Law annually since 2019, The Best Lawyers in America®
- Named to the 2025 Lawdragon 500 Leading Real Estate Lawyers list, 500 Leading Real Estate Lawyers, Lawdragon, 2025
- Named to Lawdragon 500 Leading Global Real Estate Lawyers, 2024, 500 Leading Global Real Estate Lawyers, Lawdragon, 2024
- Named annually to the Super Lawyer by New York Metro Super Lawyers list since 2006, New York Metro Super Lawyers
Industry Groups
- Film And TV Production
- Real Estate
Office location for Thomas D. Kearns
1325 Avenue of the Americas
16th Floor
New York, NY 10019
Selections
20 Years Super Lawyers
- Super Lawyers: 2006 - 2025