CASSINI They contended that CPLR 321 (c) mandated a stay only when a force majeure, like death or incompetency, prevented a party from practicing law. Fashion icon's widow recently held in contempt amid 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. It would make little sense to construe the statute as conferring a stay to protect a client who opposed counsel's application to withdraw due to disability, despite knowing of the attorney's incapacity, while denying a stay to a client who, recognizing that the attorney was disabled, did not object to the attorney's{**182 AD3d at 49} request to withdraw. 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. By order dated the following day, March 3, 2016, the Surrogate's Court granted Sills Cummis's withdrawal motion in the accounting proceeding. 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. On June 8, 2016, Marianne appeared in the Surrogate's Court with attorney Robert McKay. 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. 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]). 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). The Surrogate's Court issued an order dated December 21, 2017, in which it determined that Marianne had failed to purge her contempt. Marianne served as executor of the decedent's estate for several years (see id. Marianne did not argue that the court was proceeding to trial in violation of the statutory stay provided for in CPLR 321 (c). [citations omitted]). 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. In any event, the Court of Appeals has said that "[t]he 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). 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. Thus, since she asked for relief but that relief was denied, Marianne is aggrieved by the March 6, 2017 order from which she appeals. 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]). 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." 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. We held in Nestor v Putney Twombly Hall & Hirson, LLP (153 AD3d 840) that California Code of Civil Procedure 366.3 is a procedural statute of limitations, and not a statute of repose, and thus, is inapplicable to this Surrogate's Court proceeding in New York (see Nestor v Putney Twombly Hall & Hirson, LLP, 153 AD3d at 842-843). Kelly claimed that over the next five weeks, he called the Surrogate's Court multiple times. In any event, no one served her with it. Supreme Court of the State of New York Appellate CPLR 321 provides three pathways by which the attorney of record for a party may seek to be replaced. Marianne's claims against OCI and CPL were disallowed. While Marianne's right to counsel, and her rights under CPLR 321 (c), should be protected, so too should the objectants' rights to prevent dissipation or looting of the estate and its assets. 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. However, Kelly averred that he had not received an order or decision on RK's motion for leave to withdraw in the accounting proceeding. There was further discussion, wherein Marianne repeatedly expressed her desire to have an attorney, before there was a recess so that exhibits could be marked. As a consequence, a stay went into effect with respect to the accounting proceeding on March 3, 2016. On June 29, 2016, Marianne again appeared in court with McKay. Marianne petitioned in the Surrogate's Court to judicially settle the intermediate account of the decedent's estate. 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 Contrary to Marianne's contention, she cannot take a position contrary to that taken in the estate tax return that she signed (see Mahoney-Buntzman v Buntzman, 12 NY3d 415, 422; Man Choi Chiu v Chiu, 125 AD3d 824, 826; Czernicki v Lawniczak, 74 AD3d 1121, 1125; Acme Am. 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. Div. In contrast, where CPLR 321 (c) is triggered, an automatic stay takes hold upon the occurrence of the triggering event. Thus, we reverse the order dated March 6, 2017, denying Marianne's motion to vacate the July 1, 2016 order, grant her motion, and vacate the July 1, 2016 order. 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). Second, a person is aggrieved when someone asks for relief against him or her, which the person opposes, and the relief is granted in whole or in part" (Mixon v TBV, Inc., 76 AD3d 144, 156-157 [2010] [emphasis and footnotes omitted]). He came to the United States as a young man after starting as a designer in Rome, and quickly got work with Paramount Pictures. The order allowed Sills Cummis to withdraw and stated that "all proceedings in the instant proceeding are stayed for a period of thirty (30) days of the date hereof." Supreme Court of the State of New York Appellate As discussed above, the litigation continued into the fall of 2015. Marianne replied, contending that the choice to proceed pro se was involuntarily forced on her by the court, and she did not waive her right to the automatic stay under CPLR 321 (c). Repairs, Inc. v Uretsky, 39 AD3d 675, 676-677). 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]). SCHEINKMAN, P.J., LEVENTHAL, COHEN and HINDS-RADIX, JJ., concur. Christina petitioned pursuant to SCPA 1809 to determine the validity of her claim against Likewise, a stay may be refused where the removal of counsel was the product of the client's own wrongful act (see RDLF Fin. That statute provides that actions to enforce claims arising from a promise or agreement with a decedent to distribution from an estate may be commenced within one year after the date of death (see Cal Code Civ Proc 366.3[a]). Here, Marianne was given such notice by the Surrogate's Court. In the PSA, the decedent agreed that he would, by testamentary disposition, leave not less than one half of his net estate to Daria and Christina, in equal proportions (see id.). The March 14, 2016 order, granting RK's withdrawal from representing Marianne in the accounting proceeding, did not explicitly state that Marianne had to find new counsel. Keller offered to, and did, send a copy of the order to Kelly by facsimile. Sign up for our free summaries and get the latest delivered directly to you. 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.). 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. This was, under the circumstances, the practical equivalent of more than 30 days' notice to the litigant to appoint new counsel. 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 Telmark is instructive in several respects. . In a probate proceeding in which Marianne Nestor Cassini, the former executor of the estate of Oleg Cassini, petitioned for judicial settlement of her {**182 AD3d at 40}, VIII. . 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. No order of severance or other formal documentation of this court action was issued. She was also given a period well in excess of 30 days in which to retain counsel. 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 re Cassini | 2020 N.Y. Slip Op. 1055 - Casemine [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. 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. On or about July 11, 2016, Marianne made two pro se motions. 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 this case, Marianne had two distinct attorneys of record. 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. 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. 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. Date published: Feb 13, 2020. "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]). According to Harper, when the attorneys of record confirmed that the cross motion to appoint a receiver had been previously submitted for decision, Marianne did not dispute that fact, did not request the opportunity to oppose the cross motion, and did not indicate that she needed to discuss that cross motion with counsel. The proceedings in the Surrogate's Court, Nassau County, had gone on for many years. 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 Leventhal, Cohen and Hinds-Radix, JJ., concur. Marianne commenced an action, in California, for declaratory relief, seeking a judicial determination regarding the parties' respective rights and obligations under the judgment of divorce. 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 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. [FN7] However, Marianne, in a later affidavit, claimed that no one at the June 8th conference mentioned the cross motion. 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.". In June 2016, Marianne submitted a pro se opposition to the motion to preclude, as well as a pro se motion to "amend" the order dated November 5, 2015, and vacate the judgment entered thereon. [4] The objectants made their cross motion in response to the motion made by RK for leave to withdraw. 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]). 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. 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. 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. The November 2015 order also determined that the claim asserted on behalf of Daria's estate against the decedent's estate was valid and timely. The March 6, 2017 order provided, in part: B. ORDERED that the order is affirmed insofar as appealed from by Marianne Nestor Cassini and insofar as reviewed on the appeal by Peggy Nestor; and it is further. Additionally, RK is a law firm which had at least two attorneys affiliated with it, Reppert and Kelly. He spoke with Muscarella at least once and with Shifrin at least once; Muscarella and Shifrin were friendly, but unable to provide any information regarding the status of the motion. Either way, the stay attaches, but subject to the court's authority to vary it in appropriate cases. MATTER OF CASSINI | 2020 NY Slip Op 60438(U) The trial commenced as scheduled. Keller introduced the receiver to the parties seated around the conference table. Again, we disagree. The appellants are collaterally estopped from relitigating this issue (see Wilson v Dantas, 29 NY3d 1051, 1062; Buechel v Bain, 97 NY2d 295, 303-304). We must now apply our legal conclusions to the resolution of the particular appeals before us. Marianne urged that Reppert's affirmation made clear that he was willing to provide additional medical proof at the court's request. 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. In this Court, Marianne unsuccessfully sought to stay the accounting trial (2016 NY Slip Op 81906[U] [2016]). The March 14, 2016 order required the movant, RK, to serve the order upon Marianne and all interested parties within 10 days. 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 Oyster Bay Cove property. At the conclusion of the June 8th conference, Marianne claims she was told that there would be another conference on June 29, 2016. In the letter, Harper set forth his narrative of the proceeding. Marianne Nestor | New York Post The stay was still in effect on June 29, 2016, when the court issued its determination to grant the cross motion to appoint a receiver upon default. Citations Copy Citations. 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. Defino v. Cassini, 2021 N.Y. Slip Op. 30236 - Casetext The trial did not proceed. 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. v Lopez, 168 AD3d 697, 698 [2019]), and we decline to grant leave to appeal (see CPLR 5701 [c]), bearing in mind that the December 21, 2017 order was based on the November 14, 2017 order, entered upon Marianne's default. 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. 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. {**182 AD3d at 19}, III.