On June 8, 2016, Marianne appeared in the Surrogate's Court with attorney Robert McKay. 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. 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 has held herself out as a sophisticated businessperson. Her legal team had tried to stop the auction in recent weeks.
Matter of Cassini (2020 NY Slip Op 01057) In a decision and order dated August 23, 2017, this Court affirmed the grant of a motion pursuant to CPLR 3211(a)(7) to dismiss portions of the legal malpractice complaint (see Nestor v Putney Twombly Hall & Hirson, LLP, 153 AD3d 840). In the PSA, the decedent agreed to leave by testamentary disposition at least one-half of his net estate to his daughters Daria Cassini (hereinafter Daria) and Christina Cassini (hereinafter Christina), in equal portions. 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). By order dated the following day, March 3, 2016, the Surrogate's Court granted Sills Cummis's withdrawal motion in the accounting proceeding. together the objectants) were substituted into the proceeding as executors of Christina's estate and successor administrators of Daria's estate. 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). After Marianne resigned as executor of the decedent's estate, Christina moved, inter alia, for summary judgment sustaining certain objections to Marianne's account of the decedent's estate. "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.). The Public Administrator also opposed Marianne's motion to vacate and did so for the same reasons set forth in the objectants' opposition. 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. 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. 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. 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. However, even though Marianne was never formally served with a notice to appoint, it does not necessarily follow that the statutory stay of proceedings continued on ad infinitum, as Marianne contends. 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.). 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. In particular, Marianne filed the petition for judicial settlement of her intermediate account in December 2010 or January 2011. at 1312).
MATTER OF CASSINI | 2020 NY Slip Op 60438(U) Christina subsequently commenced a [FN5] According to that order, the trial was to commence on July 25, 2016, and continue to July 29, 2016, day to day, irrespective of whether the parties were represented by counsel. The finding by the court on the motions for leave to withdraw that Reppert's condition precluded his continued participation in the matter, coupled with the facts that Reppert's health condition was a cause over which Marianne had no control and was not due to any fault on her part, established the existence of a disability for the purpose of CPLR 321 (c) (see Hendry v Hilton, 283 App Div at 171).
MARIANNE NESTOR CASSINI This case was filed in New York County Courts,
IN RE: Oleg CASSINI (2020) | FindLaw Kelly emailed Keller that day, with copies to Harper, among others. [3] CPLR 321 (c) provides that, where an attorney becomes disabled, "no further proceeding shall be taken in the action{**182 AD3d at 50} against the party for whom he [or she] appeared, without leave of the court, until thirty days after notice to appoint another attorney has been served upon that party either personally or in such manner as the court directs." 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 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). 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. In June 2016, Marianne submitted a pro se opposition to the motion to preclude, as well as a pro se motion to "amend" the order dated November 5, 2015, and vacate the judgment entered thereon. Generally, "a person is aggrieved when he or she asks for relief but that relief is denied in whole or in part. Following the recess, the court announced that it appeared Marianne had left. Since the death of the Decedent, his estate (the "Estate") has 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. [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. 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. 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. 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. In this case, Marianne had two distinct attorneys of record. WebCassini (hereinafter the decedent), who died in March 2006. 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. Second, the defendant responded to that notice by voluntarily electing to proceed pro se. Under the circumstances, argued Kelly, Marianne did not have sufficient time to adequately respond to the cross motion. We conclude that it was not, bearing in mind that on the July 25, 2016 trial date, Marianne appeared with prospective counsel, McKay. 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. 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. At the conclusion of the June 8th conference, Marianne claims she was told that there would be another conference on June 29, 2016. 182 A.D.3d 13 (N.Y. App. Farrell Fritz, P.C., Uniondale, NY (John J. Barnosky pro se and Robert M. Harper of counsel), for objectants-respondents. 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. three witnesses. On 07/27/2020 Marianne Nestor Cassini filed a Property - Other Real Property lawsuit against Brian Curran. The Pathways for Replacing an Attorney of Record. Harper responded by letter dated January 7, 2016, to oppose Kelly's request. B230315]); in litigation she commenced in New York County, alleging defamation "based on allegedly false and {**182 AD3d at 54}disparaging statements in an article published in the September 2010 issue of Vanity Fair (Cassini Royale) that reports on plaintiff's secret marriage to the late designer, Oleg Cassini, and her conduct in litigation concerning his estate" (Cassini v Advance Publs., Inc., 125 AD3d 467, 468 [2015], affg 41 Misc 3d 1202[A], 2013 NY Slip Op 51553[U] [Sup Ct, NY County 2013] [affirming order granting defendants' motion to dismiss complaint and denying plaintiff's cross motion pursuant to CPLR 306-b for an extension of time to serve]); and in litigation she commenced alleging legal malpractice against the estate's former attorneys (see Nestor v Putney Twombly Hall & Hirson, LLP, 153 AD3d 840 [2017]). "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]). However, the court has the authority to grant leave for proceedings to be conducted despite the stay. Nor is there any evidence as to whether and when Reppert advised Marianne of his health condition, apart from his disclosures to the court. According to Kelly, Shifrin was unaware of the status of the motions and suggested that Kelly write to Keller to inquire about the status. 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. Moray involved the circumstance where the attorney of record was suspended from the practice of law. In any event, no one served her with it. While Marianne's letter did not describe the nature of that motion, the record before us includes a notice of motion dated May 13, 2016, in which the objectants sought to preclude Marianne from offering any evidence at the trial of the accounting proceeding. 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. The November 14, 2017 order stated, in part: {**182 AD3d at 38}D. The Order Dated December 21, 2017. B230315]). When the Surrogate's Court set July 25, 2016, as the trial date, McKay withdrew and, averred Marianne, "the Court indicated that it would not change the July 25, 2016 date and the Court further stated words to the effect that it would proceed with{**182 AD3d at 53} the trial with or without me and with or without counsel." 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 record does not disclose what, if anything, occurred as the result of the March 2, 2016 conference.
Supreme Court of the State of New York Appellate at 1311). 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. 1 [2020]), that the Surrogate's Court improvidently exercised its discretion in denying the petitioner a reasonable adjournment of the trial date and thereafter proceeding with the trial in her absence. Marianne's claims against OCI and CPL were disallowed. {**182 AD3d at 37}. Harper, in a later affirmation, asserted that McKay refused to make a general appearance on Marianne's behalf and so, when the parties and attorneys moved into a conference with Keller, McKay was asked to leave the conference. Div. 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. 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. 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. One of those motions was to adjourn the trial. 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. 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. 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. 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. 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. 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. 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. [citations omitted]).
Supreme Court of the State of New York Appellate 2020) 120 N.Y.S.3d 103. In a probate proceeding in which Marianne Nestor Cassini, the former executor of the estate of Oleg Cassini, petitioned for judicial settlement of her {**182 AD3d at 40}, VIII. This contention is unpersuasive. 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. (15 NY3d 384 [2010]). Keller told Kelly that RK's motion for leave to withdraw in the accounting proceeding had been granted in March 2016. 2020 NY Slip Op 01055
However, absent special circumstances, there may be only one attorney of record for a party in a single action (see Stinnett v Sears Roebuck & Co., 201 AD2d 362, 364 [1994]; Matter of Kitsch Riker Oil Co., 23 AD2d 502 [1965]; but see Itar-Tass Russian News Agency v Russian Kurier, Inc., 140 F3d 442, 452 [2d Cir 1998] [recognizing second attorney of record for the purpose of charging lien]).
Matter of Cassini :: 2020 :: New York Appellate Division, According to Marianne, the stay continued until 30 days after the attorney for the adverse party sent the notice to appoint attorney required by CPLR 321 (c). Published by New York State Law Reporting Bureau pursuant to Judiciary Law 431. Third, pursuant to CPLR 321 (c), if an attorney dies, "becomes physically or mentally incapacitated," or is removed, suspended, or otherwise becomes disabled at any time before judgment, no further proceedings may be taken against the party for whom the attorney appeared, without leave of court, until 30 days after notice to appoint another attorney has been served upon the party either personally or in such manner as the court directs. 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. You can explore additional available newsletters here. 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. Decided January 10, 2020. Nor did he assert that RK, or either of its constituent partners, was aware of, or on notice of, the March 14, 2016 order. 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.