She was no stranger to litigation. Since the cross motion was made in the context of the accounting proceeding, the court should not have taken the matter under submission, without opposition, during the period of its own stay. Appellate Division of the Supreme Court of New York, Second Department. Harper responded by letter dated January 7, 2016, to oppose Kelly's request. The decedent's last will and testament did not include testamentary dispositions leaving at least one-half of his net estate to Daria and Christina. Stated differently, where an attorney of record becomes disabled from further{**182 AD3d at 43} participating in the case, the attorney may seek to be replaced by consent through a stipulation of substitution (CPLR 321 [b] [1]), or the attorney could seek to be relieved by court order (CPLR 321 [b] [2]), or the party represented by the attorney could be compelled to replace the attorney by service of a notice to appoint by the adverse party (CPLR 321 [c]). [citations omitted]). 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." On June 8, 2016, Marianne appeared in the Surrogate's Court with attorney Robert McKay. [FN5] According to that order, the trial was to commence on July 25, 2016, and continue to July 29, 2016, day to day, irrespective of whether the parties were represented by counsel. 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. Leventhal, Cohen and Hinds-Radix, JJ., concur. 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. The assets included, among others, Oleg Cassini, Inc. (hereinafter OCI), and Cassini Parfums, Ltd. (hereinafter CPL). of the estate. In particular, Marianne filed the petition for judicial settlement of her intermediate account in December 2010 or January 2011. 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. Although not part of these appeals, the record reflects that the Surrogate's Court issued a decision after trial dated December 19, 2017. 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. 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. 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. 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. 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]). Since the death of the Decedent, his estate (the "Estate") has Marianne Nestor Cassini, the widow of fashion designer Oleg Cassini, sits outside Nassau Surrogate's Court on Aug. 16. Credit: Bridget Murphy. They did not seek relief on an expedited basis by applying for an order to show cause. The Surrogate's Court appropriately severed the cross motion and held it in abeyance pending the court's determination of Reppert's motion for leave to withdraw. According to McKay, he was told that unless he was appearing for Marianne for all purposes, he would not be permitted to participate in the conference, "thus requiring [McKay] to leave the conference. 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. On or about July 11, 2016, Marianne made two pro se motions. However, since none of the parties have addressed, much less given any significance to, the duality of counsel, we note the circumstance but do not comment further on it. 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 In a decision and order dated August 23, 2017, this Court affirmed the grant of a motion pursuant to CPLR 3211(a)(7) to dismiss portions of the legal malpractice complaint (see Nestor v Putney Twombly Hall & Hirson, LLP, 153 AD3d 840). Marianne did not contend in her motion that she was compelled to make it pro se. {**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. 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]). 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. 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's appeal from this order is addressed on a related appeal decided herewith (Matter of Cassini,
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]). First, the defendant pointed out that CPLR 321 (c) permits further proceedings by leave of the court, and contended that the Supreme Court exercised that express statutory authority to hear and grant the defendant's motion to dismiss after the plaintiff's attorney was suspended from the practice of law. 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.". We also hold, on a related appeal decided herewith, Matter of Cassini (182 AD3d
Appellate Division, Second Department
Keller offered to, and did, send a copy of the order to Kelly by facsimile. Second, CPLR 321 (b) (2) permits the attorney of record for a party to be changed by order of the court. Likewise, a stay may be refused where the removal of counsel was the product of the client's own wrongful act (see RDLF Fin. This case was filed in New York County Courts, Date published: Feb 13, 2020. 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]). 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. Since the court had not as yet ruled on the motions by Marianne's counsel for leave to withdraw, and since the February 16, 2016 orders specifically related only to the turnover proceeding and the SNT proceeding, it may be said, at least in a technical sense, that the conduct of the conference on March 2, 2016, did not violate any stay. 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. By letter also dated May 25, 2016, Marianne also wrote to Surrogate Reilly, seeking similar relief, namely, that "since I did not receive the Decision and Order until May 24, 2016 the stay be continued for a minimum of 30 days, from the date of my receipt of your Honor's Decision and Order." On these appeals, we consider the interplay between CPLR 321 (b) (2), which permits the attorney of record for a party to{**182 AD3d at 16} withdraw by order of the court, with the court having the ability to stay proceedings pending substitution of new counsel, and CPLR 321 (c), which automatically and effectively suspends all proceedings against a party whose attorney becomes incapacitated until 30 days after notice to appoint another attorney has been served upon that party. 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. According to Harper, the court granted Marianne time to retain new counsel, scheduling an appearance on the cross motion for March 2, 2016. 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. However, no order or other written documentation of this court action was issued. 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. ", In opposition, the objectants assert that CPLR 321 (c) does not apply to the situation at hand because RK and Sills Cummis moved for leave to withdraw under CPLR 321 (b) (2) and there is no evidence that any force majeure event occurred which would have triggered the application of CPLR 321 (c). 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.). 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." 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." 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. Kelly emailed Keller that day, with copies to Harper, among others. McKay promptly informed the court that he would not be able to handle that trial because of his work schedule, his summer vacation plans with his family, and the fact that the file in the proceeding comprised at least 28 large boxes. Christina petitioned pursuant to SCPA 1809 to determine the validity of her claim against the estate (see Matter of Cassini, 95 AD3d at 1312). 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.". Whether a stay of proceedings should be granted upon an order relieving counsel of record is a matter to be considered further. 2020 NY Slip Op 01055
We must now apply our legal conclusions to the resolution of the particular appeals before us. at 580-581). . 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. The proceedings in the Surrogate's Court, Nassau County, had gone on for many years. Additionally, in Harper's description, "Marianne engaged in a pattern of obstruction the likes of which is rarely seen in litigation." "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.". Marianne claimed that she was told that the next court appearance would be on June 8, 2016.
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