She averred that it took her at {**182 AD3d at 28}least two weeks to secure the voluminous file from her attorneys. 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 petitioned in the Surrogate's Court to judicially settle the intermediate account of the decedent's estate. 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. Kelly further stated that he had contacted counsel for the objectants, Robert M. Harper of Farrell Fritz, P.C., to request consent to adjourn the cross motion until after the motions for leave to withdraw were heard, but Harper refused to consent. Marianne served as executor of the decedent's estate for several years (see id. Of course, some further action must be taken in order for the discharge to be made known to the other parties to the action and to the court. "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.". . This appeal is one of several arising out of a protracted and vigorously contested probate proceeding involving the estate of the internationally renowned fashion designer Oleg Cassini (hereinafter the decedent), who died in March 2006. The objectants asserted that Marianne commenced the Accounting Proceeding in January 2011, that the trial was originally scheduled for August 2015, but 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]). 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. In June 2014, after Christina petitioned for Marianne's removal as executor and the Public Administrator of Nassau County was appointed as temporary administrator of the estate, the Public Administrator was appointed administrator c.t.a., by agreement of the parties. The amended order dated November 13, 2017, denied Marianne's motion to vacate and declare void all decisions, orders, and judgments entered after March 14, 2016, as violative of the CPLR 321 (c) stay. Since the cross motion was made in the context of the accounting proceeding, the court should not have taken the matter under submission, without opposition, during the period of its own stay. three witnesses. [FN7] However, Marianne, in a later affidavit, claimed that no one at the June 8th conference mentioned the cross motion. of the estate. 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." 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. The court surcharged Marianne for, among other things, refusing to comply with the court's determination that the claims of Christina and Daria were valid, making unauthorized transfers of funds from OCI and CPL, making unauthorized payments from OCI, and failing to collect receivables. The appellants are collaterally estopped from relitigating this issue (see Wilson v Dantas, 29 NY3d 1051, 1062; Buechel v Bain, 97 NY2d 295, 303-304). 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. In an order dated June 9, 2016, the Surrogate's Court memorialized the conference held the day before. The Court of Appeals reversed, stating: The Court explained why it rejected two arguments the defendant made. 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.". 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. 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. 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]). Under the circumstances, argued Kelly, Marianne did not have sufficient time to adequately respond to the cross motion. (hereinafter Sills Cummis). ", 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. "Under CPLR 5015 (a), a court is empowered to vacate a default judgment [or order] for several reasons, including excusable neglect; newly-discovered evidence; fraud, misrepresentation or other misconduct by an adverse party; lack of jurisdiction; or upon the reversal, modification or vacatur of a prior order" (Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]; see CPLR 5015 [a]; HSBC Bank USA v Josephs-Byrd, 148 AD3d 788 [2017]; 40 BP, LLC v Katatikarn, 147 AD3d 710 [2017]). Kelly noted that the unopposed motions by RK and Sills Cummis for leave to withdraw were returnable on January 13, 2016. Keller said that she was aware of that and that an order granting RK's withdrawal motion in the accounting proceeding "would be going out 'in the next day or two.' That same day, the Surrogate's Court distributed copies of its decision dated June 29, 2016, determining to grant the objectants' cross motion to appoint a receiver (2016 NY Slip Op 32022[U] [Sur Ct, Nassau County 2016]). 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. The objectants neither demanded such proof nor opposed the withdrawal motion. Indeed, CPLR 321 (c) provides that the "removal" of the attorney of record brings about a stay, without regard to whether the removal was with or without the client's consent. Marianne, in an affidavit submitted in connection with a later motion, asserted that she appeared for a court conference conducted by law clerk Keller. Accordingly, (1) the appeals from the orders dated November 14, 2017, and December 21, 2017, respectively, are dismissed,{**182 AD3d at 58} (2) the order dated March 6, 2017, is reversed, on the law, the petitioner's motion to vacate the order dated July 1, 2016, is granted, the order dated July 1, 2016, is vacated, the matter is remitted to the Surrogate's Court, Nassau County, for a new determination of the objectants' cross motion to appoint a receiver, and pending the new determination of the cross motion, the receiver appointed pursuant to the order dated July 1, 2016, shall continue as temporary receiver, and (3) 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. Harper, in an affirmation submitted in connection with a later motion, asserted that no attorney from either RK or Sills Cummis appeared on the return date of the withdrawal motions even though an appearance typically was required on the return date of a motion in the Surrogate's Court. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The PSA was incorporated verbatim, in its entirety, into an interlocutory judgment of divorce (see id.). Kaplan further averred that Marianne had made statements which prevented him from representing her in the absence of Reppert continuing to serve as lead counsel. 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 use of a stipulation of substitution, which avoids expense and delay, is common where the client, the outgoing attorney, and the incoming attorney (who could be the client pro se) are entirely in agreement on the substitution (see Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C321:2 at 181 [2010 ed]). Marianne cross-moved, among other things, for summary judgment dismissing objection 34 to the account of the estate. [citations omitted]). Am., 93 NY2d 48, 55, quoting Siegel, NY Prac 34 at 38 [2d ed]). Marianne has held herself out as a sophisticated businessperson. The Surrogate's Court issued an order dated December 12, 2016, which denied, as "moot," Marianne's motion to adjourn {**182 AD3d at 34}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. Harper also stated that, after the April court date, the cross motion was submitted for decision. In both instances, it is preferable for the adverse party to serve notice of any stay and notice to appoint a new attorney upon the client of the relieved attorney in order to prevent the situation, as happened here, where a court-imposed stay lapsed before the client was on notice that a stay had been granted. Marianne Nestor Cassini, the widow of fashion designer Oleg Cassini, sits outside Nassau Surrogate's Court on Aug. 16. Credit: Bridget Murphy. While Harper noted that the Surrogate's Court had allowed Sills Cummis and RK to withdraw by orders dated March 3 and March 14, 2016, respectively, he did not state when he first became aware of the existence of those two orders. Christina subsequently commenced a The trial commenced as scheduled. Marianne posits that, since Reppert was found to be disabled from further representation of her, a stay pursuant to CPLR 321 (c) automatically went into effect and no further proceedings could be taken against her until a notice to appoint a new attorney was served upon her. According to Harper, the court granted Marianne time to retain new counsel, scheduling an appearance on the cross motion for March 2, 2016. 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. The March 6, 2017 order provided, in part: B. at 1311). Motion by Marianne Nestor Cassini on appeals from seven orders of the Surrogate's Court, Nassau County, dated August 3, 2015, November 5, 2015, December ORDERED that the appeal by Peggy Nestor from so much of the order as 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 is dismissed, as Peggy Nestor is not aggrieved by that portion of the order (see Mixon v TBV, Inc., 76 AD3d 144, 156-157); and it is further. The objectants did not oppose the withdrawal motions. VI. 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. WebMarianne served as executor of the decedent's estate for several years (see id. This site is protected by reCAPTCHA and the Google, New York Appellate Division, Second Department, New York Appellate Division, Second Department Decisions. The record before us contains an order dated March 14, 2016, of the Surrogate's Court, in which the court granted RK's withdrawal{**182 AD3d at 26} motion in the accounting proceeding. 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. Since McKay was not permitted to attend the conference as he was unwilling to enter a formal appearance, it cannot be said that Marianne's decision to participate in the conference without the benefit of counsel was wholly voluntary. Kelly, in a later affirmation, averred that on or about March 14, 2016, RK received copies of the orders dated February 16, 2016. Published by New York State Law Reporting Bureau pursuant to Judiciary Law 431. Here, both RK and Sills Cummis described themselves and were simultaneously recognized without objection as being attorneys of record for Marianne, although Sills Cummis's role, as described by Kaplan, was to assist Reppert and RK. The PSA, by its terms, was to be construed and interpreted under and in accordance with California law (see id. In a probate proceeding in which Marianne Nestor Cassini, the former executor of the estate of Oleg Cassini, petitioned for judicial settlement of her v Coletta, 153 AD3d 757, 758 [2017]; HSBC Bank USA v Josephs-Byrd, 148 AD3d at 790). Keller told Kelly that RK's motion for leave to withdraw in the accounting proceeding had been granted in March 2016. Fashion icon's widow recently held in contempt amid 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. 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. According to the receiver, By order dated July 14, 2016, the Surrogate's Court granted the objectants' motion pursuant to CPLR 3126, {**182 AD3d at 32}By order to show cause dated July 21, 2016, Marianne attempted to move to "[p]ostpon[e] the [a]ccounting [proceeding] Trial presently scheduled for July 25, 2016 to a future date i) following the completion of testing comparing the DNA of [the decedent] and Christina; ii) following the completion of a homicide investigation into the death of Daria"; to "[p]ostpon[e] the [a]ccounting [proceeding] Trial until Marianne . 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). Servs., LLC v Bernstein, 93 AD3d 421 [2012] [attorney, representing both himself and his law firm, was disbarred after pleading guilty to stealing client funds; no stay because his removal from the bar was the product of his own wrongdoing]). "Furthermore, as the Surrogate's Court also essentially and correctly determined, [Marianne] failed to raise a triable issue of fact as to the enforceability of that obligation, which [Christina] first sought to enforce after the decedent's death, via the imposition of a constructive trust upon certain assets of the decedent's estate" (id.). Eventually, Christina, individually and as administrator of Daria's estate, filed objections to Marianne's intermediate account. [FN4] We cannot assume that the Surrogate's Court was unaware of its orders. The order allowed Sills Cummis to withdraw and stated that "all proceedings in the instant proceeding are stayed for a period of thirty (30) days of the date hereof." Again, Marianne did not raise any issue regarding a stay under CPLR 321 (c). Following Christina's death in 2015, attorney John J. Barnosky and Alexandre Cassini Belmont (hereinafter. The stay provided for in CPLR 321 (c) went into effect upon the Surrogate's Court's finding that Reppert was disabled, which was first made in its orders dated February 16, 2016, relieving RK in the turnover and SNT proceedings. {**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. They contended that CPLR 321 (c) mandated a stay only when a force majeure, like death or incompetency, prevented a party from practicing law. There also may be no available record that documents the nature and extent of the disability or establishes when the disability arose. Repairs, Inc. v Uretsky, 39 AD3d 675, 676-677). Meanwhile, by two orders dated February 16, 2016, the Surrogate's Court granted RK's withdrawal motions in the turnover proceeding and in the SNT proceeding, respectively. We also note that Marianne never raised the issue of the CPLR 321 (c) stay until April 2017, when she moved to vacate and nullify all judicial determinations made since March 14, 2016. 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. The Withdrawal of Marianne's Counsel. Thus, she had some level of awareness that she had to seek new counsel, either because she was aware of the pending motions for leave to withdraw and/or was aware of the February 16, 2016 orders relieving RK in the turnover and SNT proceedings. Marianne's letter also referenced a motion having been made by the objectants that was returnable on June 8, 2016. Marianne Nestor, the widow of late fashion designer Oleg Cassini, is in jail for not following court orders related to the protracted legal battle over his $55 million estate. The Public Administrator also opposed Marianne's motion to vacate and did so for the same reasons set forth in the objectants' opposition. She pointed out that Reppert's affirmation submitted in support of the withdrawal motion expressly referenced CPLR 321 (c). The statements by Reppert and Kaplan made in affirmations submitted in support of the withdrawal motions are evidence that Reppert was unable to effectively continue with the representation of Marianne. 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. Objection 34 alleged that Marianne's account of the estate omitted a claim made by Daria asserting her entitlement to 25% of the decedent's net estate. In contrast, Harper, in an affirmation submitted in connection with a later motion, asserted that neither Marianne nor any attorney from RK or Sills Cummis appeared before the court on March 2, 2016. Since the issuance of the July 1, 2016 order violated the statutory stay, it should have been vacated. After the decedent died in 2006, Marianne Nestor Cassini (hereinafter Marianne), the decedent's widow, was issued letters testamentary as the executor of his estate. 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. Marianne subsequently commenced an action to recover damages for legal malpractice in the Supreme Court based, inter alia, on the failure of the estate's attorneys to raise in the Surrogate's Court proceeding the defense that Christina's claim was barred by California Code of Civil Procedure 366.3. We dismiss Marianne's appeal from the order dated December 21, 2017, inter alia, directing that a warrant of arrest and commitment issue, because no appeal lies as of right from an order that does not decide a motion made on notice (see CPLR 5701 [a] [2]; LaSalle Bank N.A. 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. 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). 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]). The Judge overseeing this case is RICHARD FRUIN. WebMarianne Nestor (m. 1971) Oleg Cassini (11 April 1913 17 March 2006) was a fashion designer born to an aristocratic Russian family with maternal Italian ancestry. The Pathways for Replacing an Attorney of Record. 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. First, the defendant pointed out that CPLR 321 (c) permits further proceedings by leave of the court, and contended that the Supreme Court exercised that express statutory authority to hear and grant the defendant's motion to dismiss after the plaintiff's attorney was suspended from the practice of law. While no medical testimony or documentation was provided, and the{**182 AD3d at 48} Surrogate's Court might well have denied the withdrawal motion for that reason (see Matter of Plaro Estates, Inc. v Assessor, 101 AD3d 886, 888 [2012]; Winney v County of Saratoga, 252 AD2d at 883), or requested the submission of supporting medical documentation, the court evidently was satisfied that Reppert's condition was serious and substantial, as evidenced by its unchallenged finding that Reppert was unable to continue with the representation. Her legal team had tried to stop the auction in recent weeks. Farrell Fritz, P.C., Uniondale, NY (John J. Barnosky pro se and Robert M. Harper of counsel), for objectants-respondents. The Surrogate's Court appropriately severed the cross motion and held it in abeyance pending the court's determination of Reppert's motion for leave to withdraw. He came to the United States as a young man after starting as a designer in Rome, and quickly got work with Paramount Pictures. ", Similarly, in a later affidavit, Marianne asserted that on June 8, 2016, the Surrogate's Court directed that the trial would proceed on Monday, July 25, 2016. The objectants opposed Marianne's motion to vacate. 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. Since the court had not as yet ruled on the motions by Marianne's counsel for leave to withdraw, and since the February 16, 2016 orders specifically related only to the turnover proceeding and the SNT proceeding, it may be said, at least in a technical sense, that the conduct of the conference on March 2, 2016, did not violate any stay.
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