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. 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. 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. Farrell Fritz, P.C., Uniondale, NY (John J. Barnosky pro se and Robert M. Harper of counsel), for objectants-respondents. Kelly noted that the unopposed motions by RK and Sills Cummis for leave to withdraw were returnable on January 13, 2016. Developments Subsequent to the Orders Appealed From. at 1312). Marianne Nestor Cassini (referred to in the will of Oleg Cassini as Marianne Nestor) was appointed executor of the estate and trustee on August 15, 2007. Moreover, the objectants contended that Marianne, by actively participating in this proceeding as a pro se litigant since at least May 25, 2016, charted her own course as a self-represented party and could not now claim that vacatur was warranted. at 1311). 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. The disability of the attorney of record is also within the purview of CPLR 321 (c), whether that disability be mental or physical (see Winney v County of Saratoga, 252 AD2d 882, 883 [1998]). 182 AD3d 1 [2020]). 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. The trial did not proceed. Likewise, while Marianne, on or about June 17, 2016, executed an affidavit in opposition to the objectants' motion to preclude evidence in the accounting proceeding, this affidavit was submitted under compulsion of the June 9, 2016 order and cannot be considered a voluntary election to appear pro se. In her affidavit submitted in support of that motion, Marianne asserted, as noted above, that during April and May 2016 she met with no fewer than five or six law firms regarding her case and their possible engagement. Keller told Kelly that RK's motion for leave to withdraw in the accounting proceeding had been granted in March 2016. There is a sharp dispute as to who was in attendance at the March 2nd conference. Christina petitioned pursuant to SCPA 1809 to determine the validity of her claim against Harper asserted that "Marianne decided to remain at the June 8, 2016 conference and to represent herself." One of those motions was to adjourn the trial. 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. 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. Marianne, in a later reply affidavit, claimed that McKay filed a special appearance for the order to show cause only. Here, we consider whether Marianne, who did appear pro se, did so voluntarily for a period of time before raising the CPLR 321 (c) issue. IX. On June 8, 2016, Marianne appeared in the Surrogate's Court with attorney Robert McKay. 2020 NY Slip Op 01055 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 Following the recess, the court announced that it appeared Marianne had left. 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. (hereinafter Sills Cummis). Second, CPLR 321 (b) (2) permits the attorney of record for a party to be changed by order of the court. Marianne has held herself out as a sophisticated businessperson. 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. Am., 93 NY2d 48, 55, quoting Siegel, NY Prac 34 at 38 [2d ed]). The court dismissed some objections, held some objections in abeyance, and sustained some objections. 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. Ordered that the appeals from the orders dated November 14, 2017, and December 21, 2017, respectively, are dismissed; and it is further. 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). of the estate. Marianne's appeal from this order is addressed on a related appeal decided herewith (Matter of Cassini, 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. In an order dated June 9, 2016, the Surrogate's Court memorialized the conference held the day before. You already receive all suggested Justia Opinion Summary Newsletters. The Public Administrator joined in that cross motion. 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.). The objectants did not oppose the withdrawal motions. Christina, individually and as administrator of Daria's estate, filed objections to the account. Marianne claimed that she was told that the next court appearance would be on June 8, 2016. Get free summaries of new New York Appellate Division, Second Department opinions delivered to your inbox! 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. 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. In 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 the estate, Marianne Nestor Cassini appeals, and Peggy Nestor separately appeals, from an order of the Surrogate's Court, Nassau County (Edward W. McCarty III, S.), dated November 5, 2015. Indeed, stays of proceedings, albeit in the turnover and SNT proceedings, had been in effect intermittently since February 16, 2016, leading to the prospect of understandable confusion as to the status of these matters. 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). 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. The Surrogate's Court issued an order dated December 21, 2017, in which it determined that Marianne had failed to purge her contempt. In May, Marianne Nestor Cassini, 68, traded a multimillionaire's lifestyle for that of an inmate as part of an inheritance fight that has lasted more than a decade. The decedent's last will and testament did not include testamentary dispositions leaving at least one-half of his net estate to Daria and Christina. Reppert and his firm filed three identical motions for leave to withdraw as counsel, in the accounting proceeding and in two related proceedings, one commenced by the Public Administrator against Marianne to turn over property alleged to belong to the estate (hereinafter the turnover proceeding), and the other a proceeding relating to a special needs testamentary trust established by Marianne for Daria in accordance with the decedent's will (hereinafter the SNT proceeding). 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. According to Harper, when the attorneys of record confirmed that the cross motion to appoint a receiver had been previously submitted for decision, Marianne did not dispute that fact, did not request the opportunity to oppose the cross motion, and did not indicate that she needed to discuss that cross motion with counsel. The notice of motion lists the motion as being addressed to Kelly of RK, to the attorney for the Public Administrator, and to Peggy. "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.". 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 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. The November 14, 2017 order stated, in part: {**182 AD3d at 38}D. The Order Dated December 21, 2017. The March 14, 2016 order, granting RK's withdrawal from representing Marianne in the accounting proceeding, did not explicitly state that Marianne had to find new counsel. SCHEINKMAN, P.J., LEVENTHAL, COHEN and HINDS-RADIX, JJ., concur. marianne nestor. However, the parties here do not argue that Kelly's unhampered ability to continue to represent Marianne precludes the application of CPLR 321 (c) as the result of Reppert's personal circumstances. Marianne's letter also referenced a motion having been made by the objectants that was returnable on June 8, 2016. He spoke directly with Keller. By the order dated March 6, 2017, the Surrogate's Court denied her motion to vacate. 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. 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. 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. 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. Telmark is instructive in several respects. 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. Generally, "a person is aggrieved when he or she asks for relief but that relief is denied in whole or in part. 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." 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. 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. 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. 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. Soon after the parties gave their appearances, Marianne stated: The Surrogate's Court stated that Marianne's application was denied. 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. of County Attorney, 61 NY2d 739, 742 [1984] [internal quotation marks omitted]; see Wells Fargo Bank Minn., N.A. ORDERED that one bill of costs is awarded to the objectants-respondents. 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. 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 stay is meant to 'afford a litigant, who has, through no act or fault of his own, been deprived of the services of his counsel, a reasonable opportunity to obtain new counsel before further proceedings are taken against him in the action'" (Moray v Koven & Krause, Esqs., 15 NY3d at 389, quoting Hendry v Hilton, 283 App Div at 171), and, in this case, as of June 9, 2016, Marianne was afforded the opportunity to retain new counsel prior to the scheduled trial date of July 25, 2016. 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. . 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. Appellate Division, Second Department 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]). The objectants argued that the Surrogate's Court granted RK's motion for leave to withdraw as Marianne's counsel pursuant to CPLR 321 (b) (2), not CPLR 321 (c), and thus the stay Marianne claimed to have arisen under CPLR 321 (c) did not apply. 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. three witnesses. While at least some of Marianne's statements are at variance with the terms of the June 9, 2016 order, and that order lists her (and not any attorney for her) in the recitation of counsel following the court's signature, the record does not contain any evidence that the order was served on Marianne or that she had knowledge of the order, though she certainly had knowledge of some of its terms, such as the setting of the trial date and the court's intention to proceed with or without her. 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. 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. 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 . By letter dated July 8, 2015, Reppert informed the Surrogate's Court and the other parties that he had to undergo surgery and it would be physically impossible for him to prepare for, and proceed with, the trial as scheduled. By Bridget Murphy 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. 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. Nor is there any evidence as to whether and when Reppert advised Marianne of his health condition, apart from his disclosures to the court. Nor did he assert that RK, or either of its constituent partners, was aware of, or on notice of, the March 14, 2016 order. 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. Marianne and her sister Peggy Nestor separately appeal from the order dated November 5, 2015. John Barnosky, pro se, and Farrel Fritz, Uniondale (Robert Harper of counsel), for John Barnosky and others, objectants-respondents. Additionally, RK is a law firm which had at least two attorneys affiliated with it, Reppert and Kelly. 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). In his letter, Kelly contended, in essence, that the 30-day stay provided in the March 14, 2016 order had elapsed before he had even known about the order and requested that the court direct that a 30-day stay commence as of May 23, 2016, the day he received the order. Certainly, where the attorney's withdrawal is caused by a voluntary act of the client, the court has the discretion to permit the matter to proceed without a stay (see Matter of Wiley v Musabyemariya, 118 AD3d at 899-900 [no stay where client voluntarily discharged attorney]; Sarlo-Pinzur v Pinzur, 59 AD3d at 608 [no stay where client refused to cooperate with counsel in preparing for trial]; Graco Constr. 182 A.D.3d 13 (N.Y. App. The March 6, 2017 order provided, in part: B. In addition to the record lacking any evidence that this order was ever officially entered upon the records of the court, the record does not contain any evidence that the order was ever served by anyone upon anyone. The order recited, among other things, that at a conference, the receiver advised the court of Marianne's continued lack of cooperation and ongoing refusal to comply with the receiver's requests for access, information, and documents, thus impeding the receiver's attempts to ascertain and preserve the property belonging to OCI and CPL, and that the receiver made an oral application, in which both the Public Administrator and the objectants joined, to direct Marianne to comply with all requests for access, information, and documents contained in a prior correspondence of the receiver. at 580-581). Christina's claim was based on a "Property Settlement Agreement" (hereinafter the PSA) which was entered into by the decedent and Tierney. Pursuant to a choice-of-law provision, the PSA was to be construed and interpreted in accordance with California law. Marianne moved to dismiss Christina's claim, and Christina cross-moved for summary judgment on the issue of liability. She averred that it took her at {**182 AD3d at 28}least two weeks to secure the voluminous file from her attorneys. The Amended Order Dated November 13, 2017, By notice of motion dated April 12, 2017, Marianne moved pro se to{**182 AD3d at 36}. Following Christina's death in 2015, attorney John J. Barnosky and Alexandre Cassini Belmont (hereinafter. The Interplay between CPLR 321 (b) and (c). 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 The disability, whatever its nature, must be such that effectually prevents the attorney from continuing the representation of the client (see Hendry v Hilton, 283 App Div at 171; see also Winney v County of Saratoga, 252 AD2d at 883). Second, in an order dated November 5, 2015, the Surrogate's Court, upon a decision dated October 9, 2015, granted the objectants' motion for summary judgment sustaining certain specified objections to Marianne's account. {**182 AD3d at 40}, VIII. Again, we disagree. Marianne petitioned in the Surrogate's Court to judicially settle the intermediate account of the decedent's estate. v Coletta, 153 AD3d 757, 758 [2017]; HSBC Bank USA v Josephs-Byrd, 148 AD3d at 790). 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. 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 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.). Case Summary. 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). We also hold, on a related appeal decided herewith, Matter of Cassini (182 AD3d In approaching our analysis of the interplay between CPLR 321 (b) and (c), there are two anomalous circumstances in this matter which require notation. Repairs, Inc. v Uretsky, 39 AD3d 675, 676-677). Again, Marianne did not raise any issue regarding a stay under CPLR 321 (c). 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. She pointed out that Reppert's affirmation submitted in support of the withdrawal motion expressly referenced CPLR 321 (c). 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." The March 14, 2016 order, also like the two earlier orders, set forth the Surrogate's Court's finding and determination that Reppert was unable to continue to represent Marianne "due to health reasons." 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. In the letter, Harper set forth his narrative of the proceeding. 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]). 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. 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.
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