No order of severance or other formal documentation of this court action was issued. 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. By order dated the following day, March 3, 2016, the Surrogate's Court granted Sills Cummis's withdrawal motion in the accounting proceeding. 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). 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. Marianne cross-moved, among other things, for summary judgment dismissing objection 34 to the account of the estate. The trial commenced as scheduled. It appears that the motion was marked submitted on April 6, 2016, at which time a stay of the accounting proceeding was in effect, pursuant to the court's own March 14, 2016 order. Marianne Nestor Cassini Court: SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department Date published: Feb 13, The objectants asserted that Marianne commenced the Accounting Proceeding in January 2011, that the trial was originally scheduled for August 2015, but . Case Summary. The controversy at issue herein might have been less confusing had Sills Cummis served strictly in an of counsel capacity to RK, with the latter firm being the sole{**182 AD3d at 42} attorney of record. In Moray, the Court of Appeals referenced Telmark by stating: Thus, in Moray, the Court of Appeals distinguished Telmark but did not overrule Telmark or call into doubt its conclusion on the facts there presented that there was no violation of CPLR 321 (c). 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. {**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. IX. This opinion is uncorrected and subject to revision before publication in the Official Reports. 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]). 1 [2020]), that the Surrogate's Court improvidently exercised its discretion in denying the petitioner a reasonable adjournment of the trial date and thereafter proceeding with the trial in her absence. While the Surrogate's Court relieved counsel and provided for a 30-day stay of proceedings, it failed to require that the adverse parties serve the orders relieving counsel upon the litigant whose counsel was permitted to withdraw. 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. 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. We have considered whether her interposition of the motion constitutes a voluntary election to proceed pro se as of that date. 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. 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. The adverse parties themselves failed to serve the orders and also to serve the petitioner with a notice to appoint new counsel. Date published: Feb 13, 2020. 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). At the conclusion of the June 8th conference, Marianne claims she was told that there would be another conference on June 29, 2016. 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. In particular, Marianne filed the petition for judicial settlement of her intermediate account in December 2010 or January 2011. 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). We consider the context of this matter as well in reaching our conclusion. "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.". The Surrogate's Court, inter alia, granted Christina's cross motion for summary judgment, and this Court affirmed (see Matter of Cassini, 95 AD3d 1311). The copy of the order in the record does not contain a filed or entered stamp affixed by the Clerk of the Court. 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. In approaching our analysis of the interplay between CPLR 321 (b) and (c), there are two anomalous circumstances in this matter which require notation. Decided January 10, 2020. 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. The defendant then sent a letter to the plaintiff's attorneys in which she acknowledged that her counsel had been suspended and directed that the plaintiff "send any papers directly to [her] until notified to the contrary" (Telmark, Inc. v Mills, 199 AD2d at 580 [internal quotation marks omitted]). In this case, Marianne had two distinct attorneys of record. Here, however, there is nothing in the record indicating that Marianne's voluntary act or wrongdoing caused Reppert's withdrawal. VI. 182 A.D.3d 13 (N.Y. App. You can explore additional available newsletters here. [FN7] However, Marianne, in a later affidavit, claimed that no one at the June 8th conference mentioned the cross motion. "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.). [FN4] We cannot assume that the Surrogate's Court was unaware of its orders. Oleg Cassini's widow files $350M lawsuit over long estate battle April 2, 2022 | 10:01am. 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. 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 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. Marianne was given until June 22, 2016, to interpose opposition to the objectants' motion to preclude, with the motion to be submitted on June 29, 2016. The case 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. According to Harper, during that conference, Shifrin asked Marianne whether she had undertaken any efforts to retain new counsel. 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. 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. 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. {**182 AD3d at 41}. He came to the United States as a young man after starting as a designer in Rome, and quickly got work with Paramount Pictures. This case was filed in New York County Courts, The statements by Reppert and Kaplan made in affirmations submitted in support of the withdrawal motions are evidence that Reppert was unable to effectively continue with the representation of Marianne. 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. Daria died in 2010, and litigation followed involving Marianne and Christina regarding a certain testamentary trust established for Daria's benefit (see Matter of Cassini, 120 AD3d 799 [2014]). at 1312). 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. Kaplan further averred that Marianne had made statements which prevented him from representing her in the absence of Reppert continuing to serve as lead counsel. Marianne's claims against OCI and CPL were disallowed. In an affirmation executed December 9, 2015, bearing a caption indicating that it pertained to the accounting proceeding, Reppert asserted that he was a member of RK, attorneys for Marianne "in connection with this action," and that he submitted the affirmation in support of counsel's application for leave to withdraw as counsel for Marianne. 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 12, 2016, March 6, 2017, November 13, 2017, Here, Marianne was given such notice by the Surrogate's Court. 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. 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). Soon after the parties gave their appearances, Marianne stated: The Surrogate's Court stated that Marianne's application was denied. Marianne Nestor Cassini, the widow of fashion designer Oleg Cassini, sits outside Nassau Surrogate's Court on Aug. 16. Credit: Bridget Murphy. Either way, the stay attaches, but subject to the court's authority to vary it in appropriate cases. 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. WebCassini (hereinafter the decedent), who died in March 2006. The record includes papers in connection with motions for leave to withdraw made separately by RK and by Sills Cummis. Leventhal, Cohen and Hinds-Radix, JJ., concur. The Surrogate's Court issued an order dated December 21, 2017, in which it determined that Marianne had failed to purge her contempt. {**182 AD3d at 22}. 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. Marianne did not contend in her motion that she was compelled to make it pro se. The June 9, 2016 order also confirmed that the cross motion to appoint a receiver had been submitted to the Surrogate's{**182 AD3d at 30} Court without opposition back in April 2016. [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 appellants are collaterally estopped from relitigating this issue (see Wilson v Dantas, 29 NY3d 1051, 1062; Buechel v Bain, 97 NY2d 295, 303-304). 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. 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.". Harper asserted that "Marianne decided to remain at the June 8, 2016 conference and to represent herself." Second, the defendant responded to that notice by voluntarily electing to proceed pro se. However, the court has the authority to grant leave for proceedings to be conducted despite the stay. 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"]). 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]). In this opinion and order, we address Marianne's appeals from three orders of the Surrogate's Court, Nassau County (Margaret C. Reilly, S.), dated March 6, 2017, November 14, 2017, and December 21, 2017, respectively, and an amended order of the same court dated November 13, 2017. . Indeed, CPLR 321 (c) provides that the "removal" of the attorney of record brings about a stay, without regard to whether the removal was with or without the client's consent. [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. 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. 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. Thus, since she asked for relief but that relief was denied, Marianne is aggrieved by the March 6, 2017 order from which she appeals. 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. Marianne urged that Reppert's affirmation made clear that he was willing to provide additional medical proof at the court's request. On or about July 11, 2016, Marianne made two pro se motions. 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 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.
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