In light of our determination, we need not reach the objectants' remaining contentions. Harper also stated that, after the April court date, the cross motion was submitted for decision. Additionally, RK is a law firm which had at least two attorneys affiliated with it, Reppert and Kelly. 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 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. 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. 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 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. Marianne has held herself out as a sophisticated businessperson. 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. Whether a stay of proceedings should be granted upon an order relieving counsel of record is a matter to be considered further. Even if it is assumed that this finding was not imported into the accounting proceeding until the March 14, 2016 order relieving RK made in that proceeding, and that the stay did not take effect in that proceeding until March 14, 2016, there is no significant consequence as it does not appear that any judicial determinations were rendered in the interval between February 16 and March 14, 2016. The widow of fashion icon Oleg Cassini was released Friday after spending six months in jail for contempt of court. 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. They contended that CPLR 321 (c) mandated a stay only when a force majeure, like death or incompetency, prevented a party from practicing law. First, in Telmark, the defendant's attorney did give his client notice that she needed to appoint a new attorney. The objectants contend that, because Marianne did not oppose the motions for leave to withdraw, she cannot rely on the provisions of CPLR 321 (c) and, in any event, as a sophisticated businessperson, she forfeited any right to a stay under CPLR 321 (c) by electing to represent herself from June 2016 forward. Generally, "a person is aggrieved when he or she asks for relief but that relief is denied in whole or in part. Marianne, in an affidavit submitted in connection with a later motion, asserted that she appeared for a court conference conducted by law clerk Keller. 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. Marianne urged that Reppert's affirmation made clear that he was willing to provide additional medical proof at the court's request. Soon after the parties gave their appearances, Marianne stated: The Surrogate's Court stated that Marianne's application was denied. [FN10] We thus treat July 25, 2016, as the terminus of the CPLR 321 (c) stay. 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. 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. [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. 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. Second, the defendant responded to that notice by voluntarily electing to proceed pro se. 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 Kelly emailed Keller that day, with copies to Harper, among others. We must now apply our legal conclusions to the resolution of the particular appeals before us. Repairs, Inc. v Uretsky, 39 AD3d 675, 676-677). However, Kelly averred that he had not received an order or decision on RK's motion for leave to withdraw in the accounting 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. The PSA, by its terms, was to be construed and interpreted under and in accordance with California law (see id. This opinion is uncorrected and subject to revision before publication in the Official Reports. Am., 93 NY2d 48, 55, quoting Siegel, NY Prac 34 at 38 [2d ed]). You already receive all suggested Justia Opinion Summary Newsletters. 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. Harper, in a subsequent affirmation, claimed that "[a]lthough yet another conference was scheduled for April 6, 2016, neither Marianne, nor her attorneys appeared in Court." Oleg Cassini's widow files $350M lawsuit over long estate battle April 2, 2022 | 10:01am. While she is not an attorney, we also recognize that she is a sophisticated litigant and had she raised the issue earlier, much of the ensuing procedural morass may have been avoided. Nothing precludes the court from serving the notice to appoint. In particular, Marianne filed the petition for judicial settlement of her intermediate account in December 2010 or January 2011. By order dated July 1, 2016, the Surrogate's Court, in effect, granted the objectants' cross motion to appoint a receiver, and appointed Rosalia Baiamonte of Gassman, Baiamonte & Betts, P.C., as receiver. Christina, individually and as administrator of Daria's estate, filed objections to the account. The order determined that the shares of OCI and CPL identified in schedule A of Marianne's account were assets of the estate and directed Marianne to turn over all stock certificates and financial and banking records for OCI and CPL to the Public Administrator, as administrator c.t.a. 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 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. The Surrogate's Court issued an order dated December 21, 2017, in which it determined that Marianne had failed to purge her contempt. at 1312). 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. However, none of our cases stand for the proposition that the CPLR 321 (c) stay applies only where the client objected to counsel's motion for leave to withdraw. The order, insofar as appealed from, granted those branches of the objectants' motion which were for summary judgment sustaining certain objections to the account of the estate and 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. 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 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 trial did not proceed. 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. 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. Get free summaries of new New York Appellate Division, Second Department opinions delivered to your inbox! On June 8, 2016, Marianne appeared in the Surrogate's Court with attorney Robert McKay. John Barnosky, pro se, and Farrel Fritz, Uniondale (Robert Harper of counsel), for John Barnosky and others, objectants-respondents. The Withdrawal of Marianne's Counsel. 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. 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. 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. 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.). three witnesses. IX. 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]). 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. The record does not disclose what, if anything, occurred as the result of the March 2, 2016 conference. Marianne asserted that no such notice was ever given and, therefore, all motions, orders, decisions, judgments, and proceedings that happened after March 14, 2016, including but not limited to the order, in effect, granting the cross motion to appoint a receiver, as well as the trial, were null and void and must be vacated. (hereinafter Sills Cummis). According to the objectants, Marianne had ample opportunity to oppose their cross motion to appoint a receiver and failed to avail herself of it. 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." 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). 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. {**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. Under this provision, where an attorney becomes functionally disabled from representing the client, a stay of all proceedings automatically attaches, with that stay remaining in effect until a notice to appoint a replacement attorney is served. 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. at 1312). 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. 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. at 842). 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. 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. 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. In her affidavit submitted in support of that motion, Marianne claimed that there was never a briefing schedule set on that cross motion, and that she was never given an opportunity to submit an opposition to that cross motion. Marianne also argues that the contempt order was improper, as the October 19, 2016 order she was found to have violated is not a lawful order, as such order was entered during the period when the proceeding was automatically stayed by operation of law. First, pursuant to CPLR 321 (b) (1), the attorney of record may withdraw or be changed by a stipulation signed by the outgoing attorney and signed and acknowledged by the client, with notice to be provided to the other parties to the action (see CPLR 321 [a]). ORDERED that one bill of costs is awarded to the objectants-respondents. Indeed, the Surrogate's Court's own statement that the cross motion was submitted, unopposed, in April 2016, raises questions. [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. WebCassini (hereinafter the decedent), who died in March 2006. 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. ", Similarly, in a later affidavit, Marianne asserted that on June 8, 2016, the Surrogate's Court directed that the trial would proceed on Monday, July 25, 2016. 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.

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