He spoke directly with Keller. "It is obvious that Mr. McKay and the other counsel who commenced review of this voluminous file would not be able to represent me in this action on such short notice and that I would be left without an attorney and that by the Court saying that it would proceed without me, [it] is prejudicing me for no apparent reason other than its apparent disdain for me and the case.". Both CPLR provisions address the replacement of an attorney of record, approaching the topic as if there is but one singular attorney who represents the party in question. Under the circumstances, argued Kelly, Marianne did not have sufficient time to adequately respond to the cross motion. Developments Subsequent to the Orders Appealed From. Am., 93 NY2d 48, 55, quoting Siegel, NY Prac 34 at 38 [2d ed]). 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. Marianne, in an affidavit submitted in connection with a later motion, asserted that she appeared for a court conference conducted by law clerk Keller. v Coletta, 153 AD3d 757, 758 [2017]; HSBC Bank USA v Josephs-Byrd, 148 AD3d at 790). We do so because. We agree with the Surrogate Court's determination to grant that branch of the objectants' motion which was for summary judgment sustaining objection 34 to Marianne's account of the estate and to deny that branch of Marianne's cross motion which was for summary judgment dismissing that objection. Seddio & Associates, P.C., Brooklyn, NY (Frank R. Seddio and Mischel & Horn, P.C. Thus, the order dated July 1, 2016, in effect, granting the cross motion to appoint a receiver, and appointing a receiver, should have been vacated in the interest of justice as having been the product of mistake, inadvertence, and surprise. There is a sharp dispute as to who was in attendance at the March 2nd conference. Oleg Cassini's widow files $350M lawsuit over long estate battle April 2, 2022 | 10:01am. Oleg Cassinis widow is blaming former friend Si Newhouse for errors in a Vanity Fair piece, according to a lawsuit filed recently in Manhattan Supreme Court. Marianne Nestor Cassini claims the county, Surrogate Court Judge Margaret Reilly, Nassau Public Administrator Brian Curran, the Nassau Sheriff and numerous others want to get Mrs. Cassini out of the way while they sold-off her and her husbands property for their own personal profit. Kelly also acknowledged receiving the separate orders granting Sills Cummis's motions for leave to withdraw. In contrast to the February 16, 2016 orders which allowed RK to withdraw based on Reppert's{**182 AD3d at 25} health, the March 3, 2016 order did not specify the precise reasons for allowing Sills Cummis to withdraw; the court stated only that it had determined that Sills Cummis was unable to continue to represent Marianne. You can explore additional available newsletters here. 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. In Moray, the Court of Appeals referenced Telmark by stating: Thus, in Moray, the Court of Appeals distinguished Telmark but did not overrule Telmark or call into doubt its conclusion on the facts there presented that there was no violation of CPLR 321 (c). He was survived by his wife, Marianne Nestor Cassini, and two daughters from his marriage to the actress Gene Tierney, Daria Cassini and Christina Cassini (see id.). Kelly stated that he just received the cross motion to appoint a receiver, also returnable on January 13, 2016, which he described as voluminous and complex and which, he asserted, bore no relationship to the pending motions for leave to withdraw. It appears that the motion was marked submitted on April 6, 2016, at which time a stay of the accounting proceeding was in effect, pursuant to the court's own March 14, 2016 order. 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. Second, the defendant responded to that notice by voluntarily electing to proceed pro se. Marianne contends that the order dated March 14, 2016, permitting RK to withdraw in the accounting proceeding was not "release[d] to the parties until it was faxed to [Kelly] more than two months later, on May 23, 2016. ", In opposition, the objectants assert that CPLR 321 (c) does not apply to the situation at hand because RK and Sills Cummis moved for leave to withdraw under CPLR 321 (b) (2) and there is no evidence that any force majeure event occurred which would have triggered the application of CPLR 321 (c). We held in Nestor v Putney Twombly Hall & Hirson, LLP (153 AD3d 840) that California Code of Civil Procedure 366.3 is a procedural statute of limitations, and not a statute of repose, and thus, is inapplicable to this Surrogate's Court proceeding in New York (see Nestor v Putney Twombly Hall & Hirson, LLP, 153 AD3d at 842-843). This opinion is uncorrected and subject to revision before publication in the Official Reports. Kaplan, in support of the motion by Sills Cummis for leave to withdraw, asserted, in an affirmation submitted in the accounting proceeding, that his role had been to assist Reppert and, with Reppert's health precluding him from continuing to represent Marianne, Kaplan's role was "also ending." According to Harper, Marianne previously attested that OCI and CPL belonged to the decedent's estate but, after it was concluded that Christina had a one-quarter interest in the estate, Marianne claimed that Marianne, individually, owned all of the estate assets. Second, CPLR 321 (b) (2) permits the attorney of record for a party to be changed by order of the court. IX. The notice of motion lists the motion as being addressed to Kelly of RK, to the attorney for the Public Administrator, and to Peggy. Christina petitioned pursuant to SCPA 1809 to determine the validity of her claim against the estate (see Matter of Cassini, 95 AD3d at 1312). The Surrogate's Court issued an order dated November 14, 2017, in which it deemed Marianne to be in civil contempt for her failure to comply with the court's October 19, 2016 order, and directed that she could purge her contempt by complying with the October 19, 2016 order within 10 days of the filing of the November 14, 2017 order with notice of entry. Kelly claimed that over the next five weeks, he called the Surrogate's Court multiple times. Marianne Nestor Cassini Court: SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department Date published: Feb 13, On January 7, 2016, an email was sent to Kelly, and copied to Harper, among others, by Eugene Shifrin, a court attorney at the Surrogate's Court. We, however, conclude that, as of June 28, 2016, Marianne had received informal but nevertheless effective advance notice of at least 30 days of the need to appoint a new attorney at the June 8, 2016, conference. Marianne replied, contending that the choice to proceed pro se was involuntarily forced on her by the court, and she did not waive her right to the automatic stay under CPLR 321 (c). In contrast, where CPLR 321 (c) is triggered, an automatic stay takes hold upon the occurrence of the triggering event. By Assignment of Judgment dated June 13, 2019 (the Assignment), Joseph DeFino, original petitioner herein, assigned a certain judgment against respondent that was filed in the office of the New York Clerk on September 12, 2014 to They urged that for CPLR 321 (c) to apply based on a party's attorney's mental or physical incompetency, the attorney's withdrawal application had to be supported by medical proof to substantiate the attorney's condition. On the other hand, it may be fairly said that the conduct of the conference on March 2, 2016, contravened the spirit of the stays imposed by the February 16, 2016 orders and that proceeding with the conference at that time was unwise. Marianne, in a later reply affidavit, claimed that McKay filed a special appearance for the order to show cause only. Citing Cases. The trial did not proceed. ", 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. The objectants contend that, even if Reppert was disabled, the statutory stay was not implicated because Marianne failed to oppose or object to RK's withdrawal motion. 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. {**182 AD3d at 27}It is notable that proceedings took place on April 6, 2016, without Marianne's participation, in the context of the accounting proceeding. Where counsel is permitted to withdraw, pursuant to CPLR 321 (b) (2), over the client's objection, the 30-day stay of proceedings generally attaches since the court has effectively "removed" counsel for the purpose of CPLR 321 (c) (Albert v Albert, 309 AD2d 884, 886 [2003]; see Matter of Wiley v Musabyemariya, 118 AD3d 898, 899-900 [2014]; Sarlo-Pinzur v Pinzur, 59 AD3d 607 [2009]). First, pursuant to CPLR 321 (b) (1), the attorney of record may withdraw or be changed by a stipulation signed by the outgoing attorney and signed and acknowledged by the client, with notice to be provided to the other parties to the action (see CPLR 321 [a]). Further, in making this finding in its orders, the court put the objectants on notice that Reppert was unable to continue his representation of Marianne and was thus disabled, leading to the applicability of CPLR 321 (c). Marianne was given until June 22, 2016, to interpose opposition to the objectants' motion to preclude, with the motion to be submitted on June 29, 2016. The court stated that the same relief was requested and denied at the trial, and that the trial had taken place. By order dated July 1, 2016, the Surrogate's Court, in effect, granted the objectants' cross motion to appoint a receiver, and appointed Rosalia Baiamonte of Gassman, Baiamonte & Betts, P.C., as receiver. On June 29, 2016, Marianne again appeared in court with McKay. In denying payment of executor's commissions to Marianne, the court stated: This Court denied Marianne's motion, among other things, to stay enforcement of the decision dated December 19, 2017, pending hearing and determination of the appeals. New legal papers were recently filed by Marianne Nestors attorneys claiming that Tina knew that Oleg Cassini wasnt her father even before her mother died. 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 the PSA, the decedent agreed that he would, by testamentary disposition, leave not less than one half of his net estate to Daria and Christina, in equal proportions (see id.). Her legal team had tried to stop the auction in recent weeks. 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. She claimed that she was never informed of a date when her opposition to the cross motion would be due, or when it was to be rescheduled. He was survived by his wife, Marianne Nestor Cassini (hereinafter Marianne), and two daughters from his prior In her affidavit submitted in support of that motion, Marianne claimed that there was never a briefing schedule set on that cross motion, and that she was never given an opportunity to submit an opposition to that cross motion. 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. Kelly averred that he was told, inter alia, that the motions had not yet been decided.[FN3]. In a probate proceeding in which Marianne Nestor Cassini, the former executor of the estate of Oleg Cassini, petitioned for judicial settlement of her Oleg Cassini (hereinafter the decedent), the internationally renowned fashion designer, died in March 2006 (see Matter of Cassini, 120 AD3d 799, 799 [2014]). 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. WebMarianne, and her sister Peggy Nestor who had been nominated in the decedents will as a successor executor, now separately appeal from so much of an order dated August 3, 2015, as granted that branch of the objectants motion which was to appoint a temporary receiver to the extent of appointing Jeffrey DeLuca, the Public Administrator of Nassau By order dated the following day, March 3, 2016, the Surrogate's Court granted Sills Cummis's withdrawal motion in the accounting proceeding. The Court of Appeals doubtless did not envisage Telmark as eviscerating the shield afforded litigants by CPLR 321 (c), but rather as preventing a litigant from using the statute as a sword by taking undue advantage through the stratagem of voluntarily proceeding pro se while keeping the CPLR 321 (c) issue in a back-pocket in order to belatedly nullify any adverse results. In McGregor v McGregor (212 AD2d at 956), the attorney of record was disbarred. [Scott T. Horn], of counsel), for petitioner-appellant. Marianne has held herself out as a sophisticated businessperson. Eventually, Christina, individually and as administrator of Daria's estate, filed objections to Marianne's intermediate account. Furthermore, Marianne's decision to absent herself from the trial after her motion for an adjournment was denied reflects her affirmative decision to forgo appearing at the trial at all rather than to represent herself at the trial without the aid of counsel. Kelly averred that he called and spoke with Keller on or about March 16, 2016, to inform her that RK had not received an order determining its motion in the accounting proceeding. While we conclude that Marianne must be provided with the opportunity to respond to the cross motion on its merits, we also nevertheless conclude that, based on the evidentiary showing made on the cross motion by the objectants, the receiver should remain in place as a temporary receiver pending a new determination of the cross motion. While the Surrogate's Court relieved counsel and provided for a 30-day stay of proceedings, it failed to require that the adverse parties serve the orders relieving counsel upon the litigant whose counsel was permitted to withdraw. Harper asserted that, after the March 2nd appearance, neither Marianne nor anyone on her behalf requested time to respond to the cross motion. The statute is designed for the protection of a litigant who, through no fault of his or her own, has been deprived of the services of one's attorney of record and who, therefore, should be given a reasonable opportunity to obtain new counsel before further proceedings are taken against such party. 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. Appellate Division of the Supreme Court of New York, Second Department. Following the recess, the court announced that it appeared Marianne had left. 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." [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. The order, insofar as appealed from, granted those branches of the objectants' motion which were for summary judgment sustaining certain objections to the account of the estate and denied that branch of the cross motion of Marianne Nestor Cassini which was for summary judgment dismissing objection 34 to the account of the estate. 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. 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. {**182 AD3d at 47} Whether such a disability has occurred, and when it occurred, may not always be readily known and, in particular, known to the adverse party. He came to the United States as a young man after starting as a designer in Rome, and quickly got work with Paramount Pictures. The Surrogate's Court issued an order dated December 21, 2017, in which it determined that Marianne had failed to purge her contempt. The protection of the statute is confined to causes which, as to the client, may be said to arise from a force majeure or one over which the client has no control (see id.). Likewise, a stay may be refused where the removal of counsel was the product of the client's own wrongful act (see RDLF Fin. Corp. v Eves, 232 AD2d 370, 370-371 [1996] [no stay where client voluntarily discharged attorney on the first day of trial]). . Harper, in a later affirmation, claimed that the court declined to hear argument from McKay after he answered that he would not be making a general appearance for Marianne. One of Oleg Cassinis daughters, Christina, challenged Mariannes control of the estate in court, sparking a still unresolved legal fight that saw the widow stripped of her position as administrator. Marianne and Oleg are seen together in 2000. Both of Oleg Cassinis daughters died without a penny as the estate case has wound its way through court. Ordered that one bill of costs is awarded to the petitioner. Marianne moved to dismiss Christina's claim, and Christina cross-moved for summary judgment on the issue of liability. The receiver, in a later affidavit, asserted that she appeared in court on July 13, 2016, to meet with the parties. In Telmark, Inc. v Mills (199 AD2d 579 [1993]), the Appellate Division, Third Department, found, on the facts presented, that there was no violation of CPLR 321 (c). The order determined that the shares of OCI and CPL identified in schedule A of Marianne's account were assets of the estate and directed Marianne to turn over all stock certificates and financial and banking records for OCI and CPL to the Public Administrator, as administrator c.t.a. To the contrary, the record contains uncontradicted assertions by Kelly that he continued to ask the court for a decision on RK's motion for leave to withdraw from the accounting proceeding until May 23, 2016, when he finally learned of the existence of the March 14, 2016 order. In this contentious, complex estate litigation, the Surrogate's Court determined, in the context of a motion by the attorneys for the petitioner to withdraw from representing her, that the attorney primarily responsible for the matter had become unable to continue to represent the petitioner due to health reasons. Had they done so, the Surrogate's Court's granting of an order to show cause could have been viewed as allowing the application to go forward notwithstanding the court's own stay. Thus, Marianne knew as of June 8, 2016, that she had to retain new counsel if she wanted to have counsel represent her at the trial. The Court of Appeals found that argument to be wanting: Second, the defendant contended that the plaintiff was foreclosed from raising CPLR 321 (c) for the first time on appeal. "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]). 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 Marianne and her sister Peggy Nestor separately appeal from the order dated November 5, 2015. The Public Administrator joined in that cross motion. Generally, "a person is aggrieved when he or she asks for relief but that relief is denied in whole or in part. She pointed out that Reppert's affirmation submitted in support of the withdrawal motion expressly referenced CPLR 321 (c). She averred that it took her at {**182 AD3d at 28}least two weeks to secure the voluminous file from her attorneys. On the other hand, an adverse party may not always be in a position to know that the attorney of record for the other side has become disabled or disabled to such an extent as to preclude the attorney from continuing to provide representation to the client. The Public Administrator also opposed Marianne's motion to vacate and did so for the same reasons set forth in the objectants' opposition. However, the court has the authority to grant leave for proceedings to be conducted despite the stay. 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. In this regard, we note that the previous Surrogate had granted a lengthy delay in the trial partly due to Reppert's representation that he was required to undergo surgery. Counsel for the Public Administrator asserted, in an affirmation submitted in support of the cross motion, that, By letter dated January 6, 2016, Christopher P. Kelly of RK wrote to the Surrogate's Court. Although the court retains "inherent discretionary power to relieve a party from a judgment or order for sufficient reason and in the interest of substantial justice" (Galasso, Langione & Botter, LLP v Liotti, 81 AD3d 884, 885 [2011]; see Ladd v Stevenson, 112 NY332 325, 332 [1889]; Katz v Marra, 74 AD3d 888, 890 [2010]), "[a] court's inherent power to exercise control over its judgments is not plenary, and should be resorted to only to relieve a party from{**182 AD3d at 56} judgments taken through [fraud,] mistake, inadvertence, surprise or excusable neglect" (Matter of McKenna v County of Nassau, Off. Nor did he assert that RK, or either of its constituent partners, was aware of, or on notice of, the March 14, 2016 order. 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. Whether a stay of proceedings should be granted upon an order relieving counsel of record is a matter to be considered further. 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. {**182 AD3d at 37}. Indeed, the Surrogate's Court's own statement that the cross motion was submitted, unopposed, in April 2016, raises questions. Again, we disagree. The Florida statute, on its face, " wipe[s] out the substantive right'" by declaring nonliability upon the passage of time, while the California statute at issue here " merely suspends the remedy'" (Tanges v Heidelberg N. Get free summaries of new New York Appellate Division, Second Department opinions delivered to your inbox! 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. As will be discussed further infra, where an attorney seeks leave to withdraw under CPLR 321 (b) (2), the court may stay proceedings pending the determination of the motion and after the determination. 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. The objectants argue that Marianne is not aggrieved by the order appointing a receiver since the Surrogate's Court determined that OCI and CPL are estate assets and Marianne is no longer an estate fiduciary. 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. According to Kelly, when after more than one month had passed and he had not received either a response from Keller or a decision on the motions, he called the court on March 1, 2016, and spoke with both Keller and a secretary, Lori Muscarella. Kelly emailed Keller that day, with copies to Harper, among others. According to Harper, the April 6, 2016 "conference" was in connection with the cross motion in the accounting proceeding to appoint a receiver. The August 2015 order also suspended any authority of Marianne and Peggy to perform any acts as managers, directors, or officers of OCI and CPL. {**182 AD3d at 40}, VIII. Christina, individually and as administrator of Daria's estate, filed objections to the account. Matter of Cassini 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. {**182 AD3d at 39}, On these appeals, Marianne argues that the Surrogate's Court should have granted her motion to vacate the orders, decisions, and proceedings occurring after March 14, 2016, when the court first determined that Reppert was unable to continue to represent Marianne due to health reasons. 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 did not contend in her motion that she was compelled to make it pro se. 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. at 1311). She was most certainly on notice that she needed new counsel when she appeared, accompanied by McKay, at a conference before the Surrogate's Court on June 8, 2016. 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. 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.
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