marianne nestor cassini 2020
Additionally, in Harper's description, "Marianne engaged in a pattern of obstruction the likes of which is rarely seen in litigation." Harper, in a later affirmation, claimed that the court declined to hear argument from McKay after he answered that he would not be making a general appearance for Marianne. Reppert had represented the decedent for more than 15 years and represented OCI and Marianne for more than 20 years. "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.". ", 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. 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. You're all set! In an affirmation executed two week later, in support of Sills Cummis's motion for leave to withdraw, Kaplan asserted that his firm's role in the matter was ending "[n]ow that Mr. Reppert's health prevents him from continuing to represent Marianne before this Court." The finding by the court on the motions for leave to withdraw that Reppert's condition precluded his continued participation in the matter, coupled with the facts that Reppert's health condition was a cause over which Marianne had no control and was not due to any fault on her part, established the existence of a disability for the purpose of CPLR 321 (c) (see Hendry v Hilton, 283 App Div at 171). 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]). 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. In this Court, Marianne unsuccessfully sought to stay the accounting trial (2016 NY Slip Op 81906[U] [2016]). Developments Subsequent to the Orders Appealed From. 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. Marianne contends that she was denied procedural due process when the court decided the cross motion to appoint a receiver without giving her notice of the return date and of a deadline for submission of opposition papers. The record includes papers in connection with motions for leave to withdraw made separately by RK and by Sills Cummis. Thus, the order dated July 1, 2016, in effect, granting the cross motion to appoint a receiver, and appointing a receiver, should have been vacated in the interest of justice as having been the product of mistake, inadvertence, and surprise. IX. 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. The trial of the matter was scheduled to commence on August 17, 2015. WebMarianne Nestor (m. 1971) Oleg Cassini (11 April 1913 17 March 2006) was a fashion designer born to an aristocratic Russian family with maternal Italian ancestry. 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, 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]). 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. 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. 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). 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." Kelly stated that he just received the cross motion to appoint a receiver, also returnable on January 13, 2016, which he described as voluminous and complex and which, he asserted, bore no relationship to the pending motions for leave to withdraw. (15 NY3d 384 [2010]). 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. That cross motion had been made in the accounting proceeding and, according to Shifrin, had been severed from the primary motions, which were for leave to withdraw as counsel. The objectants contend that, even if Reppert was disabled, the statutory stay was not implicated because Marianne failed to oppose or object to RK's withdrawal motion. 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. 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. Marianne voluntarily made a pro se motion on June 28, 2016, seeking to amend the order dated November 5, 2015, sustaining certain objections to Marianne's account and to vacate certain transcripts of judgments. 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. 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. 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. {**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. No adjournments were allowed; if no opposition was interposed, the motion would be submitted without it.[FN6]. The objectants opposed Marianne's motion to vacate. Decided January 10, 2020. Appellate Division of the Supreme Court of New York, Second Department. 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). 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. "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]). The November 14, 2017 order stated, in part: {**182 AD3d at 38}D. The Order Dated December 21, 2017. 2020) 120 N.Y.S.3d 103. Published by New York State Law Reporting Bureau pursuant to Judiciary Law 431. By the order dated March 6, 2017, the Surrogate's Court denied her motion to vacate. 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. In the order dated March 6, 2017, the Surrogate's Court denied Marianne's motion to vacate the July 1, 2016 order, in effect, granting the objectants' cross motion to appoint a receiver, upon her default, and appointing a receiver. This opinion is uncorrected and subject to revision before publication in the Official Reports. 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. 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). 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. She was no stranger to litigation. We agree with the Surrogate Court's determination to grant that branch of the objectants' motion which was for summary judgment sustaining objection 34 to Marianne's account of the estate and to deny that branch of Marianne's cross motion which was for summary judgment dismissing that objection. 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. [FN7] However, Marianne, in a later affidavit, claimed that no one at the June 8th conference mentioned the cross motion. There also may be no available record that documents the nature and extent of the disability or establishes when the disability arose. She pointed out that Reppert's affirmation submitted in support of the withdrawal motion expressly referenced CPLR 321 (c). 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. She was also given a period well in excess of 30 days in which to retain counsel. 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. Of moment, while Marianne's affidavit suggests that she did not learn that RK's motion for leave to withdraw in the accounting proceeding had been granted until May 23, 2016, she also stated therein that she began her search for new counsel in April. Thus, she had some level of awareness that she had to seek new counsel, either because she was aware of the pending motions for leave to withdraw and/or was aware of the February 16, 2016 orders relieving RK in the turnover and SNT proceedings. 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. The Court of Appeals reversed, stating: The Court explained why it rejected two arguments the defendant made. 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. He came to the United States as a young man after starting as a designer in Rome, and quickly got work with Paramount Pictures. 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. Matter of Cassini Harper responded by letter dated January 7, 2016, to oppose Kelly's request. But Marianne Nestor Cassinis attorney Vincent Reppert of Reppert Kelly said he will be back in court Friday to oppose an application to seek the sale of the Decided on February 13, 2020 The Court of Appeals doubtless did not envisage Telmark as eviscerating the shield afforded litigants by CPLR 321 (c), but rather as preventing a litigant from using the statute as a sword by taking undue advantage through the stratagem of voluntarily proceeding pro se while keeping the CPLR 321 (c) issue in a back-pocket in order to belatedly nullify any adverse results. Following the recess, the court announced that it appeared Marianne had left. 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]). 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." As corrected through Wednesday, May 20, 2020. We consider the context of this matter as well in reaching our conclusion. 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's letter also referenced a motion having been made by the objectants that was returnable on June 8, 2016. at 1312). In 2015, the Surrogate's Court, Nassau County (Edward W. McCarty III, S.), issued two orders which are the subject of related appeals decided herewith (Matter of Cassini, 180 AD3d The case 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. On 02/16/2010 MARIANNE NESTOR CASSINI filed a Property - Other Real Property lawsuit against CHRISTINA TIERNEY CASSINI. We also agree with the Surrogate Court's determination to grant those branches of Christina's motion which were for summary judgment sustaining objections 17, 19, 20, 21, 23, 25, and 26. 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. 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. 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 B230315]). The proceedings in the Surrogate's Court, Nassau County, had gone on for many years. 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. 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. Counsel for the Public Administrator asserted, in an affirmation submitted in support of the cross motion, that, By letter dated January 6, 2016, Christopher P. Kelly of RK wrote to the Surrogate's Court. The evidence presented included exhibits numbered up to 171 and Marianne urged that Reppert's affirmation made clear that he was willing to provide additional medical proof at the court's request. 182 A.D.3d 13 (N.Y. App. Here, Marianne moved to vacate the determination granting the cross motion to appoint a receiver for OCI and CPL upon her default{**182 AD3d at 55} in opposing the cross motion. 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. at 842). 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. 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. v Gervais, 168 AD3d 692, 693 [2019]). Christina, individually and as administrator of Daria's estate, filed objections to the account. 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. 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. 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." Marianne argued that{**182 AD3d at 31}. Second, CPLR 321 (b) (2) permits the attorney of record for a party to be changed by order of the court. Ordered that the appeals from the orders dated November 14, 2017, and December 21, 2017, respectively, are dismissed; and it is further. "The stay is meant to 'afford a litigant, who has, through no act or fault of his own, been deprived of the services of his counsel, a reasonable opportunity to obtain new counsel before further proceedings are taken against him in the action'" (Moray v Koven & Krause, Esqs., 15 NY3d at 389, quoting Hendry v Hilton, 283 App Div at 171), and, in this case, as of June 9, 2016, Marianne was afforded the opportunity to retain new counsel prior to the scheduled trial date of July 25, 2016. 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. Certainly, where the attorney's withdrawal is caused by a voluntary act of the client, the court has the discretion to permit the matter to proceed without a stay (see Matter of Wiley v Musabyemariya, 118 AD3d at 899-900 [no stay where client voluntarily discharged attorney]; Sarlo-Pinzur v Pinzur, 59 AD3d at 608 [no stay where client refused to cooperate with counsel in preparing for trial]; Graco Constr. Instead, there was handwriting near the lower left corner of the second page of the order to show cause reading, "Denied without merit," and bearing the Surrogate's signature and the date "7/21/16.". Since the death of the Decedent, his estate (the "Estate") has 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. 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. Where the stay has been violated, the remedy is to vacate the judicial determinations rendered in contravention of the statute (see Livore v Malik, 305 AD2d 641, 642 [2003]; Galletta v Siu-Mei Yip, 271 AD2d at 486; McGregor v McGregor, 212 AD2d at 956; see also Moray v Koven & Krause, Esqs., 15 NY3d at 389; Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, CPLR C321:3 ["A party against whom an order or judgment is entered in violation of CPLR 321(c) may have the order or judgment vacated"]). Christina petitioned pursuant to SCPA 1809 to determine the validity of her claim against In the letter, Harper set forth his narrative of the proceeding. 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]). marianne nestor. We conclude that it was not, bearing in mind that on the July 25, 2016 trial date, Marianne appeared with prospective counsel, McKay. In particular, Marianne filed the petition for judicial settlement of her intermediate account in December 2010 or January 2011. 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. According to Kelly, when after more than one month had passed and he had not received either a response from Keller or a decision on the motions, he called the court on March 1, 2016, and spoke with both Keller and a secretary, Lori Muscarella. The record does not disclose what, if anything, occurred as the result of the March 2, 2016 conference. "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.). You can explore additional available newsletters here. They contended that CPLR 321 (c) mandated a stay only when a force majeure, like death or incompetency, prevented a party from practicing law. 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. 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. Since the issuance of the July 1, 2016 order violated the statutory stay, it should have been vacated. . This pathway requires the attorney of record to move, by order to show cause, on such notice as the court may direct, to be relieved. On June 29, 2016, Marianne again appeared in court with McKay. 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. 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 the other hand, an adverse party may not always be in a position to know that the attorney of record for the other side has become disabled or disabled to such an extent as to preclude the attorney from continuing to provide representation to the client. 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 Withdrawal of Marianne's Counsel. 182 AD3d 1 [2020]). Kelly claimed that over the next five weeks, he called the Surrogate's Court multiple times. The order to show cause did not bear Surrogate Reilly's signature above the signature block. 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. The receiver, in a later affidavit, asserted that she appeared in court on July 13, 2016, to meet with the parties. 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. 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. Third, pursuant to CPLR 321 (c), if an attorney dies, "becomes physically or mentally incapacitated," or is removed, suspended, or otherwise becomes disabled at any time before judgment, no further proceedings may be taken against the party for whom the attorney appeared, without leave of court, until 30 days after notice to appoint another attorney has been served upon the party either personally or in such manner as the court directs. 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. According to the receiver, By order dated July 14, 2016, the Surrogate's Court granted the objectants' motion pursuant to CPLR 3126, {**182 AD3d at 32}By order to show cause dated July 21, 2016, Marianne attempted to move to "[p]ostpon[e] the [a]ccounting [proceeding] Trial presently scheduled for July 25, 2016 to a future date i) following the completion of testing comparing the DNA of [the decedent] and Christina; ii) following the completion of a homicide investigation into the death of Daria"; to "[p]ostpon[e] the [a]ccounting [proceeding] Trial until Marianne . [citations omitted]). In contrast, where CPLR 321 (c) is triggered, an automatic stay takes hold upon the occurrence of the triggering event. Fashion icon's widow recently held in contempt amid 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. The widow of fashion icon Oleg Cassini was released Friday after spending six months in jail for contempt of court.