at 1312). 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. Marianne and her sister Peggy Nestor separately appeal from the order dated November 5, 2015. 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. The objectants asserted that Marianne commenced the Accounting Proceeding in January 2011, that the trial was originally scheduled for August 2015, but 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. Keller introduced the receiver to the parties seated around the conference table. 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). 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. 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. Harper, in a later affirmation, claimed that McKay once again refused to enter a general appearance on Marianne's behalf and, consequently, was excused from the proceedings. The court surcharged Marianne more than $20 million in principal together with nine percent annual interest, compounded. Marianne Cassini spent six months in a Nassau County jail last year after failing to comply with court orders. 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. 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. The stay provided for in CPLR 321 (c) went into effect upon the Surrogate's Court's finding that Reppert was disabled, which was first made in its orders dated February 16, 2016, relieving RK in the turnover and SNT proceedings. Kelly noted that the unopposed motions by RK and Sills Cummis for leave to withdraw were returnable on January 13, 2016. We find support for this conclusion in Telmark, where the party was put on notice by his own attorney of the need to find a replacement (see Telmark, Inc. v Mills, 199 AD2d at 580). 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." 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. 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. Repairs, Inc. v Uretsky, 39 AD3d 675, 676-677). 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 As corrected through Wednesday, May 20, 2020. In this case, Marianne had two distinct attorneys of record. 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 She was no stranger to litigation. While at least some of Marianne's statements are at variance with the terms of the June 9, 2016 order, and that order lists her (and not any attorney for her) in the recitation of counsel following the court's signature, the record does not contain any evidence that the order was served on Marianne or that she had knowledge of the order, though she certainly had knowledge of some of its terms, such as the setting of the trial date and the court's intention to proceed with or without her. at 1312). In addition to the record lacking any evidence that this order was ever officially entered upon the records of the court, the record does not contain any evidence that the order was ever served by anyone upon anyone. However, several months later, the petitioner appeared with prospective new counsel at a court conference and was advised by the court that a trial would be conducted some six weeks later, regardless of whether the petitioner was present and regardless of whether the petitioner had representation. We also hold, on a related appeal decided herewith, Matter of Cassini (182 AD3d Marianne has held herself out as a sophisticated businessperson. The most extensive treatment of CPLR 321 (c) by our Court of Appeals is found in Moray v Koven & Krause, Esqs. 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]). The court stated that the same relief was requested and denied at the trial, and that the trial had taken place. Furthermore, Marianne's decision to absent herself from the trial after her motion for an adjournment was denied reflects her affirmative decision to forgo appearing at the trial at all rather than to represent herself at the trial without the aid of counsel. "It is obvious that Mr. McKay and the other counsel who commenced review of this voluminous file would not be able to represent me in this action on such short notice and that I would be left without an attorney and that by the Court saying that it would proceed without me, [it] is prejudicing me for no apparent reason other than its apparent disdain for me and the case.". ", 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. Meanwhile, Marianne filed a petition in the Surrogate's Court, Nassau County, for judicial settlement of her intermediate account as executor, covering the period from March 17, 2006, through December 21, 2010, and listing total{**182 AD3d at 18} gross assets of more than $56 million (hereinafter the accounting proceeding). 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. Marianne Nestor Cassini Court: SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department Date published: Feb 13, Christina petitioned pursuant to SCPA 1809 to determine the validity of her claim against the estate (see Matter of Cassini, 95 AD3d at 1312). However, Kelly averred that he had not received an order or decision on RK's motion for leave to withdraw in the accounting proceeding. We have considered whether her interposition of the motion constitutes a voluntary election to proceed pro se as of that date. {**182 AD3d at 47} Whether such a disability has occurred, and when it occurred, may not always be readily known and, in particular, known to the adverse party. In conformity with the controlling statutory and decisional authorities, and to protect the litigant's right to legal representation, we conclude that the judicial determinations rendered in between the Surrogate's Court determination of incapacity and its subsequent practical notification of a deadline to appoint counsel should be vacated. 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. Likewise, a stay may be refused where the removal of counsel was the product of the client's own wrongful act (see RDLF Fin. 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. 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. Ordered that the appeals from the orders dated November 14, 2017, and December 21, 2017, respectively, are dismissed; and it is further. Second, the defendant responded to that notice by voluntarily electing to proceed pro se. Marianne claimed that she was told that the next court appearance would be on June 8, 2016. 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. Marianne Nestor, the widow of late fashion designer Oleg Cassini, is in jail for not following court orders related to the protracted legal battle over his $55 million estate. The PSA was incorporated verbatim, in its entirety, into an interlocutory judgment of divorce (see id.). 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. 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. of the estate. Developments Subsequent to the Orders Appealed From. While the objectants presented significant evidence in support of their motion, they did not contend that there was any urgency to their application and did not present any evidence of any emergency. 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. Farrell Fritz, P.C., Uniondale, NY (John J. Barnosky pro se and Robert M. Harper of counsel), for objectants-respondents. The objectants neither demanded such proof nor opposed the withdrawal motion. at 842). 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 proceedings in the Surrogate's Court, Nassau County, had gone on for many years. 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. The court, in the October 9, 2015 decision, attributed the delay in the trial partly to the health issue of counsel and partly due to the necessity for a decision on the matters addressed in the November 5, 2015 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. 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. 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). However, the court has the authority to grant leave for proceedings to be conducted despite the stay. CPLR 321 provides three pathways by which the attorney of record for a party may seek to be replaced. [FN2] But, according to Harper, Marianne appeared and participated in a conference at which Harper, attorneys for other parties to the proceeding, Shifrin, and Surrogate Reilly's then law clerk, Debra Keller, were present. VI. Marianne argued that{**182 AD3d at 31}. 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. Cassinis widow Marianne Nestor Cassini has been entangled in years-long legal battles with the designers descendants. 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. In contrast, where CPLR 321 (c) is triggered, an automatic stay takes hold upon the occurrence of the triggering event. The court surcharged Marianne for, among other things, refusing to comply with the court's determination that the claims of Christina and Daria were valid, making unauthorized transfers of funds from OCI and CPL, making unauthorized payments from OCI, and failing to collect receivables. After the decedent died in 2006, Marianne Nestor Cassini (hereinafter Marianne), the decedent's widow, was issued letters testamentary as the executor of his estate. The adverse parties themselves failed to serve the orders and also to serve the petitioner with a notice to appoint new counsel. The Amended Order Dated November 13, 2017, By notice of motion dated April 12, 2017, Marianne moved pro se to{**182 AD3d at 36}. 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). Seddio & Associates, P.C., Brooklyn, NY (Frank R. Seddio and Mischel & Horn, P.C. On 02/16/2010 MARIANNE NESTOR CASSINI filed a Property - Other Real Property lawsuit against CHRISTINA TIERNEY CASSINI. 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. The record does not disclose what, if anything, occurred as the result of the March 2, 2016 conference. Harper also stated that, after the April court date, the cross motion was submitted for decision. Christina filed a claim asserting her entitlement to 25% of the decedent's net estate, and petitioned for a determination as to the validity and enforceability of her claim. 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. WebAPPEAL by the petitioner, Marianne Nestor Cassini, the former executor of the estate of Oleg Cassini, in a probate proceeding in which she petitioned for judicial settlement of The March 14, 2016 order required the movant, RK, to serve the order upon Marianne and all interested parties within 10 days. According to Harper, during that conference, Shifrin asked Marianne whether she had undertaken any efforts to retain new counsel. Although not part of these appeals, the record reflects that the Surrogate's Court issued a decision after trial dated December 19, 2017. Kelly, in a later affirmation, averred that on or about March 14, 2016, RK received copies of the orders dated February 16, 2016. In approaching our analysis of the interplay between CPLR 321 (b) and (c), there are two anomalous circumstances in this matter which require notation. You're all set! Here, we consider whether Marianne, who did appear pro se, did so voluntarily for a period of time before raising the CPLR 321 (c) issue. of County Attorney, 61 NY2d 739, 742 [1984] [internal quotation marks omitted]; see Wells Fargo Bank Minn., N.A. Telmark is instructive in several respects. In 1952, the decedent and his then-wife Gene Tierney entered into a "Property Settlement Agreement" (hereinafter the PSA) that was incorporated by reference into a California final judgment of divorce entered April 7, 1953. (hereinafter Sills Cummis). Although the court retains "inherent discretionary power to relieve a party from a judgment or order for sufficient reason and in the interest of substantial justice" (Galasso, Langione & Botter, LLP v Liotti, 81 AD3d 884, 885 [2011]; see Ladd v Stevenson, 112 NY332 325, 332 [1889]; Katz v Marra, 74 AD3d 888, 890 [2010]), "[a] court's inherent power to exercise control over its judgments is not plenary, and should be resorted to only to relieve a party from{**182 AD3d at 56} judgments taken through [fraud,] mistake, inadvertence, surprise or excusable neglect" (Matter of McKenna v County of Nassau, Off. 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. On or about July 11, 2016, Marianne made two pro se motions. "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]). No adjournments were allowed; if no opposition was interposed, the motion would be submitted without it.[FN6]. In contrast, Harper, in an affirmation submitted in connection with a later motion, asserted that neither Marianne nor any attorney from RK or Sills Cummis appeared before the court on March 2, 2016. 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.". The November 14, 2017 order stated, in part: {**182 AD3d at 38}D. The Order Dated December 21, 2017. 773 [2020]; Matter of Cassini, 180 AD3d 775 [2020]). Oleg Cassini's widow files $350M lawsuit over long estate battle April 2, 2022 | 10:01am. 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. {**182 AD3d at 40}, VIII. 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. 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.
Rimango O Resto A Disposizione,
Barclays Dragon Pass Membership Number,
Articles M
