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). 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. Marianne Nestor Cassini et al v. Brian Curran - UniCourt 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 Withdrawal of Marianne's Counsel. Kelly averred that he was told, inter alia, that the motions had not yet been decided.[FN3]. In an order dated June 9, 2016, the Surrogate's Court memorialized the conference held the day before. Marianne did not contend in her motion that she was compelled to make it pro se. . Pursuant to a choice-of-law provision, the PSA was to be construed and interpreted in accordance with California law. Even apart from the violation of CPLR 321 (c), there is an alternative basis for reversal. 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). Matter of Cassini (2020 NY Slip Op 01057) 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. The Surrogate's Court issued an order dated December 21, 2017, in which it determined that Marianne had failed to purge her contempt. Marianne contends that the order dated March 14, 2016, permitting RK to withdraw in the accounting proceeding was not "release[d] to the parties until it was faxed to [Kelly] more than two months later, on May 23, 2016. In the letter, Harper set forth his narrative of the proceeding. The case 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. 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. The receiver, in a later affidavit, asserted that she appeared in court on July 13, 2016, to meet with the parties. Meanwhile, around the time the motion practice was taking place on Marianne's motion to vacate, the receiver moved, inter alia, to hold Marianne in civil and criminal contempt for her alleged failure to comply with the October 19, 2016 order. 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. By order dated October 19, 2016, the Surrogate's Court, inter alia, directed Marianne to perform certain tasks and deliver certain information and documents to the receiver. 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.". 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. 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. The November 14, 2017 order stated, in part: {**182 AD3d at 38}D. The Order Dated December 21, 2017. 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]). 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]). 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. 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. "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]). Oleg Cassini (hereinafter the decedent), the internationally renowned fashion designer, died in March 2006 (see Matter of Cassini, 120 AD3d 799, 799 [2014]). Here, Marianne was given such notice by the Surrogate's Court. He offered to "provide an in camera affirmation for the Court to review or make [himself] available to discuss the medical issues privately that prevent [him] from continuing at this time with the Court." at 1312). Marianne, who was nominated in the decedent's will as the executor of his estate, was issued letters testamentary. at 1312). The inclusion of Kelly of RK, and the exclusion of Marianne, as recipient of the motion, supports a conclusion that Farrell Fritz, P.C., as attorneys for the movants, was unaware, as of May 13, 2016, that RK's motion for leave to withdraw had been decided two months earlier. The most extensive treatment of CPLR 321 (c) by our Court of Appeals is found in Moray v Koven & Krause, Esqs. 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 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). Kelly left at least two messages for Keller, but those messages went unreturned. 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]). 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, Soon after the parties gave their appearances, Marianne stated: The Surrogate's Court stated that Marianne's application was denied. Marianne claimed that she was told that the next court appearance would be on June 8, 2016. {**182 AD3d at 22}. MATTER OF CASSINI | 180 A.D.3d 773 (2020) While we conclude that Marianne must be provided with the opportunity to respond to the cross motion on its merits, we also nevertheless conclude that, based on the evidentiary showing made on the cross motion by the objectants, the receiver should remain in place as a temporary receiver pending a new determination of the cross motion. Marianne served as executor of the decedent's estate for several years (see id. Kelly claimed that over the next five weeks, he called the Surrogate's Court multiple times. Marianne Nestor Cassini Court: SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department Date published: Feb 13, Either way, the stay attaches, but subject to the court's authority to vary it in appropriate cases. They did not seek relief on an expedited basis by applying for an order to show cause. He came to the United States as a young man after starting as a designer in Rome, and quickly got work with Paramount Pictures. at 842). 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. 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." In an affirmation executed December 9, 2015, bearing a caption indicating that it pertained to the accounting proceeding, Reppert asserted that he was a member of RK, attorneys for Marianne "in connection with this action," and that he submitted the affirmation in support of counsel's application for leave to withdraw as counsel for Marianne. In or around December 2015, Marianne's attorneys moved for leave to withdraw from representing her. Kaplan, in support of the motion by Sills Cummis for leave to withdraw, asserted, in an affirmation submitted in the accounting proceeding, that his role had been to assist Reppert and, with Reppert's health precluding him from continuing to represent Marianne, Kaplan's role was "also ending." 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 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). 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. Unlike CPLR 321 (b) (1), where a substitution is with the outgoing attorney's consent, and CPLR 321 (b) (2), where an attorney may seek to be relieved, CPLR 321 (c) becomes applicable upon the occurrence of an event that is typically outside the outgoing attorney's control. 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 Telmark is instructive in several respects. Citations Copy Citations. Repairs, Inc. v Uretsky, 39 AD3d 675, 676-677). . Cassini 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 The Public Administrator also opposed Marianne's motion to vacate and did so for the same reasons set forth in the objectants' opposition. MATTER OF CASSINI | 2020 NY Slip Op 60438(U) Accepting Marianne's version of events, she stated that she had engaged McKay to represent her, with both Marianne and McKay understanding that no trial date had been set. Whether a stay of proceedings should be granted upon an order relieving counsel of record is a matter to be considered further. 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. In contrast, where CPLR 321 (c) is triggered, an automatic stay takes hold upon the occurrence of the triggering event. Supreme Court of the State of New York Appellate In this contentious, complex estate litigation, the Surrogate's Court determined, in the context of a motion by the attorneys for the petitioner to withdraw from representing her, that the attorney primarily responsible for the matter had become unable to continue to represent the petitioner due to health reasons. "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.). 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. 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. CASSINI {**182 AD3d at 41}. The trial commenced as scheduled. 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. 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. Oleg Cassini Widow | Marianne Nestor | Gramercy In any event, no one served her with it. (15 NY3d 384 [2010]). In particular, Marianne filed the petition for judicial settlement of her intermediate account in December 2010 or January 2011. 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 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. In any event, contrary to the appellants' contention, our holding in Nestor v Putney Twombly Hall & Hirson, LLP (153 AD3d 840) is not inconsistent with Astoria Fed. Harper averred that Marianne was evasive with her answers and Marianne had stated that she was aware that her attorneys had moved for leave to withdraw and that she would be seeking to replace them. [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. Ordered that 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 it is further. 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. 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. 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]). 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.