The terms of the March 14, 2016 order are essentially similar to those set forth in the February 16, 2016 orders. The statute does not make any one of these three pathways exclusive, though, as a practical matter, where an attorney has died or has become so incapacitated to be unable to execute an instrument, that attorney would not be able to effectively execute a stipulation of substitution or an affirmation in support of a motion for leave to be relieved. We consider the context of this matter as well in reaching our conclusion. You can explore additional available newsletters here. 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. Marianne, who was nominated in the decedent's will as the executor of his estate, was issued letters testamentary. By Bridget Murphy In Moray, this Court affirmed the Supreme Court's order granting the defendant's motion pursuant to CPLR 3012 (b) to dismiss the action for failure to timely serve a complaint, holding, inter alia, that the plaintiff's contention that the action{**182 AD3d at 44} had been stayed pursuant to CPLR 321 (c) was raised for the first time on appeal and, thus, was not properly before us (see Moray v Koven & Krause, Esqs., 62 AD3d 765 [2009], revd 15 NY3d 384 [2010]). 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. {**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. 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.). Corp. v Pellicane (78 AD3d 622), which involved a Florida statute providing that two years after the death of a person, neither the decedent's estate, the personal representative, nor the beneficiaries shall generally be liable for any claim or cause of action against the decedent (see Fla Stat Ann 733.710[1]). 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. 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. Second, a person is aggrieved when someone asks for relief against him or her, which the person opposes, and the relief is granted in whole or in part" (Mixon v TBV, Inc., 76 AD3d 144, 156-157 [2010] [emphasis and footnotes omitted]). That action was dismissed for lack of personal jurisdiction over an indispensable party (see Cassini v Belmont, 2012 WL 3594378, 2012 Cal App Unpub LEXIS 6167 [Aug. 22, 2012, No. Marianne Nestor Cassini Court: SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department Date published: Feb 13, 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]). 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). 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. 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. 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. 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. 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. He asserted that he was "physically unable to provide the representation that is necessary to properly represent [his client]," Marianne. We have considered whether her interposition of the motion constitutes a voluntary election to proceed pro se as of that date. Marianne commenced an action, in California, for declaratory relief, seeking a judicial determination regarding the parties' respective rights and obligations under the judgment of divorce. The court dismissed some objections, held some objections in abeyance, and sustained some objections. The record includes papers in connection with motions for leave to withdraw made separately by RK and by Sills Cummis. While the objectants' brief discusses the March 14, 2016 order, the objectants do not respond to Marianne's contention that the March 14, 2016 order was not released to the parties until May 23, 2016. 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. 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. 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. 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. Generally, "a person is aggrieved when he or she asks for relief but that relief is denied in whole or in part. ORDERED that the order is affirmed insofar as appealed from by Marianne Nestor Cassini and insofar as reviewed on the appeal by Peggy Nestor; and it is further. According to Harper, the court granted Marianne time to retain new counsel, scheduling an appearance on the cross motion for March 2, 2016. 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. 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. [2] Here, in moving for leave to withdraw from representing Marianne, Reppert asserted that, for medical reasons, he had been unable to fully return to the practice of law full-time since July 2015. 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." You already receive all suggested Justia Opinion Summary Newsletters. 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. 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). 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. 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 circumstances present here could have been readily avoided had the objectants withheld their motion to appoint a receiver until after a determination of the motions by Marianne's counsel for leave to withdraw and until after they had served a notice to appoint counsel upon Marianne. The defendant then sent a letter to the plaintiff's attorneys in which she acknowledged that her counsel had been suspended and directed that the plaintiff "send any papers directly to [her] until notified to the contrary" (Telmark, Inc. v Mills, 199 AD2d at 580 [internal quotation marks omitted]). Again, Marianne did not raise any issue regarding a stay under CPLR 321 (c). The March 14, 2016, order, like the two earlier orders, granted RK's motion for leave to withdraw and provided for a stay of all proceedings for 30 days, which stay took effect as of the date of the March 14, 2016 order. Appellate Division, Second Department Christina subsequently commenced a She did not return during the trial. [FN7] However, Marianne, in a later affidavit, claimed that no one at the June 8th conference mentioned the cross motion. The trial commenced as scheduled. 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. of the estate. Citing Cases. In or around December 2015, Marianne's attorneys moved for leave to withdraw from representing her. This contention is unpersuasive. 773 [2020]; Matter of Cassini, 180 AD3d 775 [2020]). CPLR 321 provides three pathways by which the attorney of record for a party may seek to be replaced. Seddio & Associates, P.C., Brooklyn, NY (Frank R. Seddio and Mischel & Horn, P.C. Marianne Nestor Cassini, the widow of fashion designer Oleg Cassini, sits outside Nassau Surrogate's Court on Aug. 16. Credit: Bridget Murphy. The state Appellate Division found in February 2020 that Nassau authorities should have given Marianne Cassini more time to find a new lawyer after her first attorney withdrew for medical reasons before a July 2016 trial in the case, and has ordered a new trial. A court spokesman said Reilly was prohibited from commenting. Meanwhile, Daria died in 2010, and Christina, the sole distributee of Daria's estate, was appointed to serve as the administrator of Daria's estate. Even apart from the violation of CPLR 321 (c), there is an alternative basis for reversal. 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. The PSA, by its terms, was to be construed and interpreted under and in accordance with California law (see id. 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.). 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. WebCassini (hereinafter the decedent), who died in March 2006. The interlocutory judgment of divorce was incorporated by reference into the final judgment of divorce that was entered in 1953 (see id.). Marianne urged that Reppert's affirmation made clear that he was willing to provide additional medical proof at the court's request. 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 12, 2016, March 6, 2017, November 13, 2017, 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]). Kelly therefore asked the court to sever the cross motion from the motions for leave to withdraw, and to adjourn the cross motion to a date to be scheduled by the court upon or following the disposition of the withdrawal motions. The objectants opposed Marianne's motion to vacate. at 1312). 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. at 1312). 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. 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. He came to the United States as a young man after starting as a designer in Rome, and quickly got work with Paramount Pictures. John Barnosky, pro se, and Farrel Fritz, Uniondale (Robert Harper of counsel), for John Barnosky and others, objectants-respondents. "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]). Since the client is, by executing the stipulation of substitution, in effect, consenting to the discharge of the attorney of record and simultaneous replacement with another, there is no entitlement to an automatic stay of proceedings by reason of the change in counsel (see Shurka v Shurka, 100 AD3d 566 [2012]), although incoming counsel could always seek a stay from the court (see CPLR 2201). 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 Surrogate's Court issued an order dated December 21, 2017, in which it determined that Marianne had failed to purge her contempt. The March 6, 2017 order provided, in part: B. However, as above noted, there is nothing in the record before us that indicates that anyone served the March 14, 2016 order on anyone else, or that any of the counsel involved in this matter had any contemporaneous awareness of the existence of this order. By the terms of the statute, the termination of the stay is dependent upon service of a notice to appoint by the adverse party or parties, with the notice to be served personally or as the court directs. ", 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. Kelly, in a later affirmation, averred that on or about March 14, 2016, RK received copies of the orders dated February 16, 2016. "It was at that time that Mr. McKay immediately and promptly withdrew . Div. As discussed above, the litigation continued into the fall of 2015. Appellate Division of the Supreme Court of New York, Second Department. In dealing with death, removal, or disability of an attorney of record for a party, CPLR 321 (c) postulates the existence of a singular individual who has died, has been removed or suspended, or has become disabled. {**182 AD3d at 40}, VIII. Fashion icon's widow recently held in contempt amid 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. The first of the four appeals we determine is Marianne's appeal from the order dated March 6, 2017, which denied her motion to vacate the July 1, 2016 order, in effect, granting, upon Marianne's default, the objectants' cross motion to appoint a receiver, and appointing a receiver. 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. The stay was still in effect on June 29, 2016, when the court issued its determination to grant the cross motion to appoint a receiver upon default. {**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. At the conclusion of the June 8th conference, Marianne claims she was told that there would be another conference on June 29, 2016. While Marianne has the right to appear pro se, it remains to consider whether she voluntarily exercised that right or whether her self-representation was compelled against her will. Kelly also acknowledged receiving the separate orders granting Sills Cummis's motions for leave to withdraw. By directing that the adverse party serve the order upon the client previously represented by the relieved attorney, the court can assure that the client is on notice that his or her attorney is relieved of further representation and that a new attorney should be retained. Following Christina's death in 2015, attorney John J. Barnosky and Alexandre Cassini Belmont (hereinafter together the objectants) became the executors of her estate and successor administrators of Daria's estate. Marianne moved to dismiss Christina's claim, and Christina cross-moved for summary judgment on the issue of liability. On June 8, 2016, Marianne appeared in the Surrogate's Court with attorney Robert McKay. In the email, Shifrin stated that the Surrogate had asked him to advise counsel that the court had decided to sever the cross motion to appoint a receiver and that opposition to the cross motion was not presently required. Since the death of the Decedent, his estate (the "Estate") has Marianne, in a later affidavit, asserted that Keller entered the courtroom and directed the parties to a conference/library room, but Keller told McKay that he could not accompany Marianne to the room; McKay then left the courtroom. The conduct of such proceedings contravened the terms of the March 14, 2016 order, providing for a 30-day stay of proceedings in the accounting proceeding as of the date of the order. {**182 AD3d at 41}. Developments Subsequent to the Orders Appealed From. [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." Christina's claim was based on a "Property Settlement Agreement" (hereinafter the PSA) which was entered into by the decedent and Tierney. . Marianne petitioned in the Surrogate's Court to judicially settle the intermediate account of the decedent's estate. The trial of the matter was scheduled to commence on August 17, 2015. 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. Eventually, Christina, individually and as administrator of Daria's estate, filed objections to Marianne's intermediate account. The Amended Order Dated November 13, 2017, By notice of motion dated April 12, 2017, Marianne moved pro se to{**182 AD3d at 36}. Christina petitioned pursuant to SCPA 1809 to determine the validity of her claim against the estate (see Matter of Cassini, 95 AD3d at 1312). Marianne's appeal from this order is addressed on a related appeal decided herewith (Matter of Cassini, 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. Under the circumstances, argued Kelly, Marianne did not have sufficient time to adequately respond to the cross motion. There was further discussion, wherein Marianne repeatedly expressed her desire to have an attorney, before there was a recess so that exhibits could be marked. Harper asserted that, after the March 2nd appearance, neither Marianne nor anyone on her behalf requested time to respond to the cross motion. v Coletta, 153 AD3d 757, 758 [2017]; HSBC Bank USA v Josephs-Byrd, 148 AD3d at 790). 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. at 1312). 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. Marianne Nestor Cassini claims the county, Surrogate Court Judge Margaret Reilly, Nassau Public Administrator Brian Curran, the Nassau Sheriff and numerous Here, the objectants contended, Reppert's affirmation submitted in support of the withdrawal motion did not establish that he suffered from any injuries that prevented him from practicing law, and was not supported by medical evidence concerning his condition. Her legal team had tried to stop the auction in recent weeks. 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. The Court of Appeals reversed, stating: The Court explained why it rejected two arguments the defendant made. Nor is there any evidence as to whether and when Reppert advised Marianne of his health condition, apart from his disclosures to the court. Marianne Cassini spent six months in a Nassau County jail last year after failing to comply with court orders. 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. 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. McKay promptly informed the court that he would not be able to handle that trial because of his work schedule, his summer vacation plans with his family, and the fact that the file in the proceeding comprised at least 28 large boxes. In 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. Ordered that the appeals from the orders dated November 14, 2017, and December 21, 2017, respectively, are dismissed; and it is further.
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