The November 2015 order also determined that the claim asserted on behalf of Daria's estate against the decedent's estate was valid and timely. The November 14, 2017 order stated, in part: {**182 AD3d at 38}D. The Order Dated December 21, 2017. Her legal team had tried to stop the auction in recent weeks. In light of our determination, we need not reach the objectants' remaining contentions. The March 6, 2017 order provided, in part: B. The trial did not proceed. In or around December 2015, Marianne's attorneys moved for leave to withdraw from representing her. First, in Telmark, the defendant's attorney did give his client notice that she needed to appoint a new attorney. CPLR 321 (c) expressly permits the court to grant leave to continue the proceedings, and deny a stay, in particular cases where the attorney of record has been removed or suspended. That action was dismissed for lack of personal jurisdiction over an indispensable party (see Cassini v Belmont, 2012 WL 3594378, 2012 Cal App Unpub LEXIS 6167 [Aug. 22, 2012, No. He offered to "provide an in camera affirmation for the Court to review or make [himself] available to discuss the medical issues privately that prevent [him] from continuing at this time with the Court." v Lopez, 168 AD3d 697, 698 [2019]), and we decline to grant leave to appeal (see CPLR 5701 [c]), bearing in mind that the December 21, 2017 order was based on the November 14, 2017 order, entered upon Marianne's default. Kelly, in an affirmation submitted in connection with a later motion, asserted that on or about January 29, 2016, Kelly{**182 AD3d at 23} called Shifrin to inquire about the status of the withdrawal motions. The Court of Appeals did not agree: CPLR 321 (c) applies to circumstances in which an event occurs which is personal to the attorney of record which involuntarily prevents the attorney of record from continuing to represent the party, notwithstanding the attorney's willingness to do so (see Hendry v Hilton, 283 App Div at 171). In her affidavit submitted in support of her motion, Marianne argued that the proceeding was stayed pursuant to CPLR 321 (c) when Reppert was determined to be unable, due to health reasons, to continue representing her. Even apart from the violation of CPLR 321 (c), there is an alternative basis for reversal. The court ordered that a warrant of arrest and commitment would issue directing the Nassau County Sheriff to arrest Marianne and take her into custody, and to bring her before the court to be committed to jail until she complied with the October 19, 2016 order. Matter of Cassini :: 2020 :: New York Appellate Division, Reppert's condition, contrary to the objectants' argument, constituted a force majeure, that is, an unexpected event that prevented him from doing or completing something he had agreed or planned to do (see Black's Law Dictionary [11th ed 2019], force majeure). The decedent's will did not provide for the testamentary disposition specified in the PSA, so Christina asserted a claim against the decedent's estate and, essentially, sought to have a constructive trust imposed on certain estate assets (see id. ", Eight days later, on March 24, 2016, having received nothing further from the Surrogate's Court, Kelly wrote to Keller by email, asserting that he was reminding the court that RK had not received a decision on its withdrawal motion in the accounting proceeding. In any event, no one served her with it. We also agree with the Surrogate Court's determination to grant those branches of Christina's motion which were for summary judgment sustaining objections 17, 19, 20, 21, 23, 25, and 26. On or about July 11, 2016, Marianne made two pro se motions. The controversy at issue herein might have been less confusing had Sills Cummis served strictly in an of counsel capacity to RK, with the latter firm being the sole{**182 AD3d at 42} attorney of record. Generally, "a person is aggrieved when he or she asks for relief but that relief is denied in whole or in part. B230315]). He spoke with Muscarella at least once and with Shifrin at least once; Muscarella and Shifrin were friendly, but unable to provide any information regarding the status of the motion. On April 15, 2016, having received no further word from the court, Kelly wrote a letter to Surrogate Reilly, with an emailed copy to Keller and to other counsel, "to respectfully inquire as to the status of our firm's motion to withdraw as counsel for Petitioner in the above-referenced accounting proceeding.". Indeed, while this may not have actually been intended, the impression is created, because the objectants made their cross motion at the very moment when Marianne was without counsel to assist her and they did not{**182 AD3d at 57} articulate any claim of urgency, that they were seeking to take unfair advantage of a circumstance over which Marianne had no control, which left her without counsel to assist her at a crucial stage of the case. Kelly noted that the unopposed motions by RK and Sills Cummis for leave to withdraw were returnable on January 13, 2016. She was also given a period well in excess of 30 days in which to retain counsel. Marianne contends that she was denied procedural due process when the court decided the cross motion to appoint a receiver without giving her notice of the return date and of a deadline for submission of opposition papers. Since the client is, by executing the stipulation of substitution, in effect, consenting to the discharge of the attorney of record and simultaneous replacement with another, there is no entitlement to an automatic stay of proceedings by reason of the change in counsel (see Shurka v Shurka, 100 AD3d 566 [2012]), although incoming counsel could always seek a stay from the court (see CPLR 2201). [*1]In the Matter of Oleg Cassini, deceased. The record includes papers in connection with motions for leave to withdraw made separately by RK and by Sills Cummis. But Marianne Nestor Cassinis attorney Vincent Reppert of Reppert Kelly said he will be back in court Friday to oppose an application to seek the sale of the Oyster Bay Cove property. MATTER OF CASSINI | 180 A.D.3d 773 (2020) In any event, contrary to the appellants' contention, our holding in Nestor v Putney Twombly Hall & Hirson, LLP (153 AD3d 840) is not inconsistent with Astoria Fed. According to a letter that Kelly sent to Surrogate Reilly, dated May 25, 2016, Kelly received the March 14, 2016 order only two days earlier, i.e., May 23, 2016. Marianne Nestor Cassini, the widow of fashion designer Oleg Cassini, sits outside Nassau Surrogate's Court on Aug. 16. Credit: Bridget Murphy. McKay promptly informed the court that he would not be able to handle that trial because of his work schedule, his summer vacation plans with his family, and the fact that the file in the proceeding comprised at least 28 large boxes. In an order dated November 5, 2015, the Surrogate's Court, inter alia, granted that branch of the motion which was for summary judgment sustaining certain objections to Marianne's account, and denied that branch of Marianne's cross motion which was for summary judgment dismissing objection 34. Seddio & Associates, P.C., Brooklyn, NY (Frank R. Seddio and Mischel & Horn, P.C. Likewise, it could be argued, if Reppert was disabled for the purpose of CPLR 321 (c), an automatic stay of proceedings was not triggered because of Sills Cummis's status as a second attorney of record. At the conference, it was announced for the first time, to McKay's knowledge, that a trial in the accounting proceeding was being scheduled to take place on July 25 to 29. Where an attorney is allowed to be relieved by court order under CPLR 321 (b) (2), it is preferable for the court to direct that the order be served by the adverse party, just as service of a notice to appoint by the adverse party or the court itself is required by CPLR 321 (c). Thus, since she asked for relief but that relief was denied, Marianne is aggrieved by the March 6, 2017 order from which she appeals. "In addition to the grounds set forth in section 5015 (a), a court may vacate its own judgment [or order] for sufficient reason and in the interests of substantial justice" (Woodson v Mendon Leasing Corp., 100 NY2d at 68; see CitiMortgage, Inc. v Maldonado, 171 AD3d 1007, 1008 [2019]). This pathway requires the attorney of record to move, by order to show cause, on such notice as the court may direct, to be relieved. at 842). Commencing in early 2010, Marianne was represented in the estate litigation by J. Vincent Reppert of Reppert Kelly, LLC (hereinafter RK), and Charles H. Kaplan of Sills Cummis & Gross P.C. According to Harper, the April 6, 2016 "conference" was in connection with the cross motion in the accounting proceeding to appoint a receiver. The interlocutory judgment of divorce was incorporated by reference into the final judgment of divorce that was entered in 1953 (see id.). SCHEINKMAN, P.J., LEVENTHAL, COHEN and HINDS-RADIX, JJ., concur. By letter also dated May 25, 2016, Marianne also wrote to Surrogate Reilly, seeking similar relief, namely, that "since I did not receive the Decision and Order until May 24, 2016 the stay be continued for a minimum of 30 days, from the date of my receipt of your Honor's Decision and Order." The June 9, 2016 order also confirmed that the cross motion to appoint a receiver had been submitted to the Surrogate's{**182 AD3d at 30} Court without opposition back in April 2016. For the reasons previously expressed, we reverse this amended order and grant Marianne's motion to the extent of vacating all decisions, orders, and judgments entered in all proceedings herein between March 14, 2016, and July 25, 2016, and otherwise deny such motion. 773 [2020]; Matter of Cassini, 180 AD3d 775 [2020]). Kelly stated: "We also believe it was timed to provide the least amount of time possible to prepare an opposition and with the knowledge that we are shorthanded due to Mr. Reppert's infirmity." [FN8] Withdrawal is not, however, available for the mere asking, particularly when some significant court action is pending, such as the commencement of a trial. Accepting Marianne's version of events, she stated that she had engaged McKay to represent her, with both Marianne and McKay understanding that no trial date had been set. Accordingly, this Court concluded that raising that statute in the Surrogate's Court proceeding would not have resulted in a determination that Christina's claim was barred (see id. According to the objectants, Marianne had ample opportunity to oppose their cross motion to appoint a receiver and failed to avail herself of it. She pointed out that Reppert's affirmation submitted in support of the withdrawal motion expressly referenced CPLR 321 (c). In late January, Nestor Cassini was released after being held for six months in a Nassau County jail for defying a judges order to turn over financial statements and business records, among other material. At that time, she described the incident as an abuse of power and alleged the judge breached her own served order. This contention is unpersuasive. Oleg Cassini's widow files $350M lawsuit over long estate battle April 2, 2022 | 10:01am. Since the death of the Decedent, his estate (the "Estate") has However, none of our cases stand for the proposition that the CPLR 321 (c) stay applies only where the client objected to counsel's motion for leave to withdraw. The other July 11, 2016 pro se motion was to vacate the July 1, 2016 order, inter alia, appointing a receiver. Meanwhile, Marianne filed a petition in the Surrogate's Court, Nassau County, for judicial settlement of her intermediate account as executor, covering the period from March 17, 2006, through December 21, 2010, and listing total{**182 AD3d at 18} gross assets of more than $56 million (hereinafter the accounting proceeding). Marianne, in a later affidavit, asserted that Keller entered the courtroom and directed the parties to a conference/library room, but Keller told McKay that he could not accompany Marianne to the room; McKay then left the courtroom. Meanwhile, around the time the motion practice was taking place on Marianne's motion to vacate, the receiver moved, inter alia, to hold Marianne in civil and criminal contempt for her alleged failure to comply with the October 19, 2016 order. The most extensive treatment of CPLR 321 (c) by our Court of Appeals is found in Moray v Koven & Krause, Esqs. We have considered whether her interposition of the motion constitutes a voluntary election to proceed pro se as of that date. Second, a person is aggrieved when someone asks for relief against him or her, which the person opposes, and the relief is granted in whole or in part" (Mixon v TBV, Inc., 76 AD3d 144, 156-157 [2010] [emphasis and footnotes omitted]). {**182 AD3d at 40}, VIII. Marianne Nestor | New York Post Likewise, a stay may be refused where the removal of counsel was the product of the client's own wrongful act (see RDLF Fin. In the order dated March 6, 2017, the Surrogate's Court denied Marianne's motion to vacate the July 1, 2016 order, in effect, granting the objectants' cross motion to appoint a receiver, upon her default, and appointing a receiver. Also unavailing is the objectants' contention that the legislative purpose underlying the enactment of CPLR 321 (c) is to protect an unknowing client whose counsel failed to inform the client of counsel's suspension or disability. You already receive all suggested Justia Opinion Summary Newsletters. Eventually, Christina, individually and as administrator of Daria's estate, filed objections to Marianne's intermediate account. Either way, the stay attaches, but subject to the court's authority to vary it in appropriate cases. Daria died in 2010, and litigation followed involving Marianne and Christina regarding a certain testamentary trust established for Daria's benefit (see Matter of Cassini, 120 AD3d 799 [2014]). The widow of fashion icon Oleg Cassini was released Friday after spending six months in jail for contempt of court. Keller told Kelly that RK's motion for leave to withdraw in the accounting proceeding had been granted in March 2016. Marianne cross-moved, among other things, for summary judgment dismissing objection 34 to the account of the estate. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. Marianne voluntarily made a pro se motion on June 28, 2016, seeking to amend the order dated November 5, 2015, sustaining certain objections to Marianne's account and to vacate certain transcripts of judgments. [citations omitted]). It is undisputed that no party sought leave of the Surrogate's Court to take further proceeding against Marianne and that no formal notice to appoint another attorney was served on her. Where the stay has been violated, the remedy is to vacate the judicial determinations rendered in contravention of the statute (see Livore v Malik, 305 AD2d 641, 642 [2003]; Galletta v Siu-Mei Yip, 271 AD2d at 486; McGregor v McGregor, 212 AD2d at 956; see also Moray v Koven & Krause, Esqs., 15 NY3d at 389; Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, CPLR C321:3 ["A party against whom an order or judgment is entered in violation of CPLR 321(c) may have the order or judgment vacated"]). The client always has the option of discharging the attorney, in which event the discharge is immediate (see Farage v Ehrenberg, 124 AD3d 159, 165 [2014]). when the Court indicated that it would not change the July 25,{**182 AD3d at 29} 2016 date and the Court further stated words to the effect that it would proceed with the trial with or without me and with or without counsel." Oleg Cassini (hereinafter the decedent), the internationally renowned fashion designer, died in March 2006 (see Matter of Cassini, 120 AD3d 799, 799 [2014]). The August 2015 order also vacated a prior decree, in a related matter, to the extent that such decree had appointed Peggy Nestor (hereinafter Peggy)Marianne's sisterto run the day-to-day business operations of OCI and CPL. In 1952, the decedent and his then-wife Gene Tierney entered into a "Property Settlement Agreement" (hereinafter the PSA) that was incorporated by reference into a California final judgment of divorce entered April 7, 1953. On June 8, 2016, Marianne appeared in the Surrogate's Court with attorney Robert McKay. Of moment, while Marianne's affidavit suggests that she did not learn that RK's motion for leave to withdraw in the accounting proceeding had been granted until May 23, 2016, she also stated therein that she began her search for new counsel in April. Legal Battles Over Oleg Cassinis Estate Continue In an affirmation executed two week later, in support of Sills Cummis's motion for leave to withdraw, Kaplan asserted that his firm's role in the matter was ending "[n]ow that Mr. Reppert's health prevents him from continuing to represent Marianne before this Court." McKay, in a later affirmation, asserted that Marianne asked him to accompany her to a conference, with a view toward representing her to the conclusion of the matters. In this opinion and order, we address Marianne's appeals from three orders of the Surrogate's Court, Nassau County (Margaret C. Reilly, S.), dated March 6, 2017, November 14, 2017, and December 21, 2017, respectively, and an amended order of the same court dated November 13, 2017. Marianne stated that Keller did not provide her with any information concerning the status of the motion for leave to withdraw or when the cross motion would be rescheduled. On 07/27/2020 Marianne Nestor Cassini filed a Property - Other Real Property lawsuit against Brian Curran. We must now apply our legal conclusions to the resolution of the particular appeals before us. Where a client is represented by a law firm with multiple attorneys, it may be argued that the death, suspension, or disability of one attorney in that law firm does not trigger application of CPLR 321 (c). He asserted that Kelly's request should be denied in view of the actions by Marianne and Peggy which were exposing OCI and CPL to waste and "immediate" harm. While Marianne has the right to appear pro se, it remains to consider whether she voluntarily exercised that right or whether her self-representation was compelled against her will. Marianne argued that{**182 AD3d at 31}. However, as above noted, there is nothing in the record before us that indicates that anyone served the March 14, 2016 order on anyone else, or that any of the counsel involved in this matter had any contemporaneous awareness of the existence of this order. Reppert's medical condition, which deteriorated well after he began representing Marianne in lengthy, protracted proceedings, was a cause over which Marianne had no control and was not due to fault on her part. First, in an order dated August 3, 2015, the Surrogate's Court authorized and directed the Public Administrator to run the day-to-day business operations of OCI and CPL and all their respective assets and properties. His last will and testament was admitted to probate in the Surrogate's Court, Nassau County{**182 AD3d at 17} (see Matter of Cassini, 95 AD3d 1311, 1312 [2012]). Matter of Cassini :: 2020 :: New York Appellate Division, WebIn a probate proceeding in which Marianne Nestor Cassini, the former executor of the estate of Oleg Cassini, petitioned for judicial settlement of her intermediate account of This was, under the circumstances, the practical equivalent of more than 30 days' notice to the litigant to appoint new counsel. During or around the time these probate matters were pending in the Surrogate's Court, Nassau County, Marianne also was involved in litigation she commenced in California, seeking a judicial determination regarding the respective rights and obligations under the judgment of divorce between the decedent and his former wife, Gene Tierney (see Cassini v Belmont, 2012 WL 3594378, 2012 Cal App Unpub LEXIS 6167 [Aug. 22, 2012, No. Oleg Cassini's widow released from Nassau's jail Again, Marianne did not raise any issue regarding a stay under CPLR 321 (c). The bodies of the orders are substantively identical and state: Even though a stay of two of the three pending proceedings was in effect, and the motions for leave to withdraw were still sub judice in the accounting proceeding, there was an appearance in the Surrogate's Court on March 2, 2016, in relation to the cross motion to appoint a receiver. Corp. v Eves, 232 AD2d 370, 370-371 [1996] [no stay where client voluntarily discharged attorney on the first day of trial]). Cassini Oleg Cassini's widow files $350M lawsuit over estate Instead, there was handwriting near the lower left corner of the second page of the order to show cause reading, "Denied without merit," and bearing the Surrogate's signature and the date "7/21/16.". Second, CPLR 321 (b) (2) permits the attorney of record for a party to be changed by order of the court. Oleg Cassini However, despite knowing that Marianne's counsel was seeking to be relieved and seeking to have a stay imposed pending service of a notice to appoint successor{**182 AD3d at 21} counsel, the objectants cross-moved to appoint a receiver. Those objections alleged that Marianne's account of the decedent's estate omitted certain items that had been previously identified as assets of the estate by Marianne in various documents, including a New York State estate tax return executed by Marianne in her capacity as executor of the decedent's estate. Harper asserted that, after the March 2nd appearance, neither Marianne nor anyone on her behalf requested time to respond to the cross motion. Here, Marianne moved to vacate the determination granting the cross motion to appoint a receiver for OCI and CPL upon her default{**182 AD3d at 55} in opposing the cross motion. There is no merit to the objectants' contention that because Marianne no longer had authority to administer OCI or CPL, she was not aggrieved by the appointment of a receiver for those entities. It might further be said that, while Reppert's illness gave rise to appropriate cause for Reppert to withdraw under CPLR 321 (b), it did not necessitate granting Sills Cummis's motion for leave to withdraw. Additionally, RK is a law firm which had at least two attorneys affiliated with it, Reppert and Kelly. Reppert did not provide any details as to his medical condition or treatment, but offered to do so in camera upon the court's request. Supreme Court of the State of New York Appellate CPLR 321 provides three pathways by which the attorney of record for a party may seek to be replaced. Where the attorney of record has died, been disbarred, or has been suspended from practice, the fact of the attorney's inability to proceed further is readily established by a documentary record, such as a death certificate or court order. Subsequently, this Court, inter alia, denied that branch of Marianne's motion which was to stay enforcement of the orders dated November 14, 2017, and December 21, 2017, pending hearing and determination of the appeals. By directing that the adverse party serve the order upon the client previously represented by the relieved attorney, the court can assure that the client is on notice that his or her attorney is relieved of further representation and that a new attorney should be retained. Get free summaries of new New York Appellate Division, Second Department opinions delivered to your inbox! Here, there is no evidence that Marianne knew that Reppert had a health impairment at the time she initially retained him some 10 years earlier. Ordered that the amended order dated November 13, 2017, is reversed, on the law, the petitioner's motion to vacate and declare void all decisions, orders, and judgments entered after March 14, 2016, is granted to the extent that all decisions, orders, and judgments entered in all proceedings herein between March 14, 2016, and July 25, 2016, are vacated, and the motion is otherwise denied; and it is further. Since both before and after the interposition of the June 28, 2016 motion, Marianne clearly sought the services of counsel, we cannot say the June 28 motion reflected her volitional determination to represent herself as of that date. Marianne's appeal from the order dated November 14, 2017, inter alia, granting the receiver's motion to hold her in contempt, must be dismissed, because Marianne did not oppose the motion, and no appeal lies from an order entered upon the default of the appealing party (see CPLR 5511; HSBC Bank USA, N.A. IN RE: Oleg CASSINI (2020) | FindLaw No order of severance or other formal documentation of this court action was issued. While it does not appear that the Surrogate's Court took Reppert up on his offer to share medical information with the court privately, the court, in granting Reppert's motions for leave to withdraw, made the specific finding and determination that Reppert was "unable to continue to represent [Marianne] due to health reasons." The objectants argue that CPLR 321 (c) does not apply because there was no force majeure and there is no evidence that Reppert was effectively prevented from practicing law. Marianne Nestor [FN1], The objectants did not oppose the motions by RK and Sills Cummis for leave to withdraw. Whether the CPLR 321 (c) stay took effect on February 16, 2016, or March 14, 2016, the stay was in still in effect when the motion was marked submitted by the court in April 2016 and was still in effect on June 9, 2016, when the court confirmed that marking in its order of that date. In the letter, Harper set forth his narrative of the proceeding. According to the decision after trial, the trial took place on July 25, 26, and 27, 2016. Marianne did not contend in her motion that she was compelled to make it pro se. Here, the objectants contended, Reppert's affirmation submitted in support of the withdrawal motion did not establish that he suffered from any injuries that prevented him from practicing law, and was not supported by medical evidence concerning his condition. It would make little sense to construe the statute as conferring a stay to protect a client who opposed counsel's application to withdraw due to disability, despite knowing of the attorney's incapacity, while denying a stay to a client who, recognizing that the attorney was disabled, did not object to the attorney's{**182 AD3d at 49} request to withdraw. [FN7] However, Marianne, in a later affidavit, claimed that no one at the June 8th conference mentioned the cross motion. Kelly left at least two messages for Keller, but those messages went unreturned. Mtge. There was further discussion, wherein Marianne repeatedly expressed her desire to have an attorney, before there was a recess so that exhibits could be marked. Oleg Cassini's widow defies court order, sits in Nassau jail There also may be no available record that documents the nature and extent of the disability or establishes when the disability arose. No adjournments were allowed; if no opposition was interposed, the motion would be submitted without it.[FN6]. Farrell Fritz, P.C., Uniondale, NY (John J. Barnosky pro se and Robert M. Harper of counsel), for objectants-respondents. Telmark is instructive in several respects. On 02/16/2010 MARIANNE NESTOR CASSINI filed a Property - Other Real Property lawsuit against CHRISTINA TIERNEY CASSINI. Citations Copy Citations. Harper averred that Marianne was evasive with her answers and Marianne had stated that she was aware that her attorneys had moved for leave to withdraw and that she would be seeking to replace them. We find support for this conclusion in Telmark, where the party was put on notice by his own attorney of the need to find a replacement (see Telmark, Inc. v Mills, 199 AD2d at 580). The notice of motion lists the motion as being addressed to Kelly of RK, to the attorney for the Public Administrator, and to Peggy. The proceedings in the Surrogate's Court, Nassau County, had gone on for many years. In doing so, this Court concluded that California Code of Civil Procedure 366.3 is a procedural statute of limitations, and not a statute of repose, and thus was inapplicable to the Surrogate's Court proceeding in New York (see Nestor v Putney Twombly Hall & Hirson, LLP, 153 AD3d at 842-843).

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