However, the court has the authority to grant leave for proceedings to be conducted despite the stay. Oleg Cassini's widow files $350M lawsuit over estate By Bridget Murphy Eventually, Christina, individually and as administrator of Daria's estate, filed objections to Marianne's intermediate account. [1] We see no reason why, in a circumstance where an attorney of record has become incapacitated, CPLR 321 (c) would apply to the exclusion of the other pathways provided in CPLR 321 for replacing the attorney of record. 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. You can explore additional available newsletters here. Contrary to Marianne's contention, Daria's claim is not barred by California Code of Civil Procedure 366.3. One of Oleg Cassinis daughters, Christina, challenged Mariannes control of the estate in court, sparking a still unresolved legal fight that saw the widow stripped of her position as administrator. Marianne and Oleg are seen together in 2000. Both of Oleg Cassinis daughters died without a penny as the estate case has wound its way through court. 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. Even apart from the violation of CPLR 321 (c), there is an alternative basis for reversal. 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. 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. 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. The notice of motion lists the motion as being addressed to Kelly of RK, to the attorney for the Public Administrator, and to Peggy. 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). Since the issuance of the July 1, 2016 order violated the statutory stay, it should have been vacated. 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 Interplay between CPLR 321 (b) and (c). 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. Nor did he assert that RK, or either of its constituent partners, was aware of, or on notice of, the March 14, 2016 order. 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]). 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 August 2015 order also suspended any authority of Marianne and Peggy to perform any acts as managers, directors, or officers of OCI and CPL. Matter of Cassini :: 2020 :: New York Appellate Division, Kelly emailed Keller that day, with copies to Harper, among others. Again, we disagree. 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. Whether the CPLR 321 (c) stay took effect on February 16, 2016, or March 14, 2016, the stay was in still in effect when the motion was marked submitted by the court in April 2016 and was still in effect on June 9, 2016, when the court confirmed that marking in its order of that date. 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. The Surrogate's Court, inter alia, granted Christina's cross motion for summary judgment, and this Court affirmed (see Matter of Cassini, 95 AD3d 1311). 2020) 120 N.Y.S.3d 103. 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). 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 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 stated that the same relief was requested and denied at the trial, and that the trial had taken place. Had they done so, the Surrogate's Court's granting of an order to show cause could have been viewed as allowing the application to go forward notwithstanding the court's own stay. Marianne petitioned in the Surrogate's Court to judicially settle the intermediate account of the decedent's estate. It must be recognized that Marianne, by her own statements, knew, as of April 2016, that she would have to find new counsel,{**182 AD3d at 52} though there is nothing in the record that indicates that she knew, or was informed, that there was any deadline or urgency to that search. Kelly noted that the unopposed motions by RK and Sills Cummis for leave to withdraw were returnable on January 13, 2016. There also may be no available record that documents the nature and extent of the disability or establishes when the disability arose. 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. 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 record does not disclose what, if anything, occurred as the result of the March 2, 2016 conference. Commencing in early 2010, Marianne was represented in the estate litigation by J. Vincent Reppert of Reppert Kelly, LLC (hereinafter RK), and Charles H. Kaplan of Sills Cummis & Gross P.C. Marianne did not contend in her motion that she was compelled to make it pro se. 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]). Here, Marianne was given such notice by the Surrogate's Court. 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. 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]). 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. He spoke with Muscarella at least once and with Shifrin at least once; Muscarella and Shifrin were friendly, but unable to provide any information regarding the status of the motion. 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. In making this finding and determination, the court provided the basis for a discretionary withdrawal of counsel under CPLR 321 (b) (2) and simultaneously activated the automatic stay provisions of CPLR 321 (c), as Reppert's judicially determined inability to continue to represent Marianne for health reasons constituted a finding of disability for the purpose of CPLR 321 (c). The objectants also argue that neither the November 14, 2017 nor the December 21, 2017 orders are appealable and that, in any event, such orders are valid. On June 29, 2016, Marianne again appeared in court with McKay. is able to retain counsel to represent her in this case, since she will otherwise be severely prejudiced to proceed without legal representation"; and for other and further relief. The objectants argue that Marianne is not aggrieved by the order appointing a receiver since the Surrogate's Court determined that OCI and CPL are estate assets and Marianne is no longer an estate fiduciary. Kelly stated: "We also believe it was timed to provide the least amount of time possible to prepare an opposition and with the knowledge that we are shorthanded due to Mr. Reppert's infirmity." Kelly averred that he called and spoke with Keller on or about March 16, 2016, to inform her that RK had not received an order determining its motion in the accounting proceeding. 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. 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. 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). As a consequence, a stay went into effect with respect to the accounting proceeding on March 3, 2016. We have considered whether her interposition of the motion constitutes a voluntary election to proceed pro se as of that date. It is undisputed that no party sought leave of the Surrogate's Court to take further proceeding against Marianne and that no formal notice to appoint another attorney was served on her. The service of a formal written notice to appoint from and after June 8, 2016, would have been an idle formality since Marianne knew, and was specifically advised by the court, that, if she wanted to have counsel, she would have to have one by the July 25, 2016 trial date. She did not return during the trial. 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. By order dated the following day, March 3, 2016, the Surrogate's Court granted Sills Cummis's withdrawal motion in the accounting proceeding. Ordered that one bill of costs is awarded to the petitioner. The Florida statute, on its face, " wipe[s] out the substantive right'" by declaring nonliability upon the passage of time, while the California statute at issue here " merely suspends the remedy'" (Tanges v Heidelberg N. Cassini Second, the defendant responded to that notice by voluntarily electing to proceed pro se. Reppert's condition, contrary to the objectants' argument, constituted a force majeure, that is, an unexpected event that prevented him from doing or completing something he had agreed or planned to do (see Black's Law Dictionary [11th ed 2019], force majeure). Oleg Cassini's widow files $350M lawsuit over long estate battle April 2, 2022 | 10:01am. Reppert's medical condition, which deteriorated well after he began representing Marianne in lengthy, protracted proceedings, was a cause over which Marianne had no control and was not due to fault on her part. The attorney must demonstrate that good cause exists to end the relationship with the client, such as by showing an irretrievable breakdown in the relationship or a failure of cooperation by the client (see Farage v Ehrenberg, 124 AD3d at 165). Her legal team had tried to stop the auction in recent weeks. Marianne moved to dismiss Christina's claim, and Christina cross-moved for summary judgment on the issue of liability. 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." He spoke directly with Keller. 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. 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. 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 Court of Appeals did not agree: CPLR 321 (c) applies to circumstances in which an event occurs which is personal to the attorney of record which involuntarily prevents the attorney of record from continuing to represent the party, notwithstanding the attorney's willingness to do so (see Hendry v Hilton, 283 App Div at 171). She pointed out that Reppert's affirmation submitted in support of the withdrawal motion expressly referenced CPLR 321 (c). Farrell Fritz, P.C., Uniondale, NY (John J. Barnosky pro se and Robert M. Harper of counsel), for objectants-respondents.
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