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. Cassini The case 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. 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. 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]). 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. 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 Marianne Nestor | New York Post The court stated that the same relief was requested and denied at the trial, and that the trial had taken place. Marianne Nestor Cassini (referred to in the will of Oleg Cassini as Marianne Nestor) was appointed executor of the estate and trustee on August 15, 2007. 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. 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]). B230315]); in litigation she commenced in New York County, alleging defamation "based on allegedly false and {**182 AD3d at 54}disparaging statements in an article published in the September 2010 issue of Vanity Fair (Cassini Royale) that reports on plaintiff's secret marriage to the late designer, Oleg Cassini, and her conduct in litigation concerning his estate" (Cassini v Advance Publs., Inc., 125 AD3d 467, 468 [2015], affg 41 Misc 3d 1202[A], 2013 NY Slip Op 51553[U] [Sup Ct, NY County 2013] [affirming order granting defendants' motion to dismiss complaint and denying plaintiff's cross motion pursuant to CPLR 306-b for an extension of time to serve]); and in litigation she commenced alleging legal malpractice against the estate's former attorneys (see Nestor v Putney Twombly Hall & Hirson, LLP, 153 AD3d 840 [2017]). The court ordered that a warrant of arrest and commitment would issue directing the Nassau County Sheriff to arrest Marianne and take her into custody, and to bring her before the court to be committed to jail until she complied with the October 19, 2016 order. On the other hand, it may be fairly said that the conduct of the conference on March 2, 2016, contravened the spirit of the stays imposed by the February 16, 2016 orders and that proceeding with the conference at that time was unwise. We do so because. The protection of the statute is confined to causes which, as to the client, may be said to arise from a force majeure or one over which the client has no control (see id.). 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. 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. In an order dated June 9, 2016, the Surrogate's Court memorialized the conference held the day before. 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. 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. He was survived by his wife, Marianne Nestor Cassini (hereinafter Marianne), and two daughters from his prior 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 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. Matter of Cassini :: 2020 :: New York Appellate Division, Additionally, RK is a law firm which had at least two attorneys affiliated with it, Reppert and Kelly. The state Appellate Division found in February 2020 that Nassau authorities should have given Marianne Cassini more time to find a new lawyer after her first attorney withdrew for medical reasons before a July 2016 trial in the case, and has ordered a new trial. A court spokesman said Reilly was prohibited from commenting. Where an attorney is allowed to be relieved by court order under CPLR 321 (b) (2), it is preferable for the court to direct that the order be served by the adverse party, just as service of a notice to appoint by the adverse party or the court itself is required by CPLR 321 (c). Citations Copy Citations. MATTER OF CASSINI | 180 A.D.3d 773 (2020) [FN7] However, Marianne, in a later affidavit, claimed that no one at the June 8th conference mentioned the cross motion. Objection 34 alleged that Marianne's account of the estate omitted a claim made by Daria asserting her entitlement to 25% of the decedent's net estate. 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. The trial commenced as scheduled. Marianne stated that, At that time, there was no trial date in place and "I [Marianne] informed these attorneys of this as this was very important to potential new counsel.". 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. We dismiss Marianne's appeal from the order dated December 21, 2017, inter alia, directing that a warrant of arrest and commitment issue, because no appeal lies as of right from an order that does not decide a motion made on notice (see CPLR 5701 [a] [2]; LaSalle Bank N.A. The circumstances present here could have been readily avoided had the objectants withheld their motion to appoint a receiver until after a determination of the motions by Marianne's counsel for leave to withdraw and until after they had served a notice to appoint counsel upon Marianne. {**182 AD3d at 39}, On these appeals, Marianne argues that the Surrogate's Court should have granted her motion to vacate the orders, decisions, and proceedings occurring after March 14, 2016, when the court first determined that Reppert was unable to continue to represent Marianne due to health reasons. 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. This was, under the circumstances, the practical equivalent of more than 30 days' notice to the litigant to appoint new counsel. Indeed, while this may not have actually been intended, the impression is created, because the objectants made their cross motion at the very moment when Marianne was without counsel to assist her and they did not{**182 AD3d at 57} articulate any claim of urgency, that they were seeking to take unfair advantage of a circumstance over which Marianne had no control, which left her without counsel to assist her at a crucial stage of the case. The other July 11, 2016 pro se motion was to vacate the July 1, 2016 order, inter alia, appointing a receiver. 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, Cassini She averred that it took her at {**182 AD3d at 28}least two weeks to secure the voluminous file from her attorneys. 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]). In this case, Marianne had two distinct attorneys of record. 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 assets included, among others, Oleg Cassini, Inc. (hereinafter OCI), and Cassini Parfums, Ltd. (hereinafter CPL). 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. 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. 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. Under the circumstances, the notification by the court to Marianne was the functional, practical equivalent of a notice to appoint a new attorney. Moreover, the objectants contended that Marianne, by actively participating in this proceeding as a pro se litigant since at least May 25, 2016, charted her own course as a self-represented party and could not now claim that vacatur was warranted. Second, the defendant responded to that notice by voluntarily electing to proceed pro se. Decided January 10, 2020. Ordered that the appeals from the orders dated November 14, 2017, and December 21, 2017, respectively, are dismissed; and it is further. "It was at that time that Mr. McKay immediately and promptly withdrew . "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. At the conclusion of the June 8th conference, Marianne claims she was told that there would be another conference on June 29, 2016. 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. Since McKay was not permitted to attend the conference as he was unwilling to enter a formal appearance, it cannot be said that Marianne's decision to participate in the conference without the benefit of counsel was wholly voluntary. Legal Battles Over Oleg Cassinis Estate Continue 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 both instances, it is preferable for the adverse party to serve notice of any stay and notice to appoint a new attorney upon the client of the relieved attorney in order to prevent the situation, as happened here, where a court-imposed stay lapsed before the client was on notice that a stay had been granted. 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. According to Kelly, Shifrin was unaware of the status of the motions and suggested that Kelly write to Keller to inquire about the status. The March 14, 2016 order required the movant, RK, to serve the order upon Marianne and all interested parties within 10 days. Marianne stated that Keller did not provide her with any information concerning the status of the motion for leave to withdraw or when the cross motion would be rescheduled. Marianne also argues that the contempt order was improper, as the October 19, 2016 order she was found to have violated is not a lawful order, as such order was entered during the period when the proceeding was automatically stayed by operation of law. He came to the United States as a young man after starting as a designer in Rome, and quickly got work with Paramount Pictures. Decided on February 13, 2020 However, the court has the authority to grant leave for proceedings to be conducted despite the stay. Cassini In an order dated November 5, 2015, the Surrogate's Court, inter alia, granted that branch of the motion which was for summary judgment sustaining certain objections to Marianne's account, and denied that branch of Marianne's cross motion which was for summary judgment dismissing objection 34. Harper asserted that, after the March 2nd appearance, neither Marianne nor anyone on her behalf requested time to respond to the cross motion. Moray involved the circumstance where the attorney of record was suspended from the practice of law. The Court of Appeals found that argument to be wanting: Second, the defendant contended that the plaintiff was foreclosed from raising CPLR 321 (c) for the first time on appeal. 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. Marianne's appeal from this order is addressed on a related appeal decided herewith (Matter of Cassini, [Scott T. Horn], of counsel), for petitioner-appellant. MATTER OF CASSINI | 2020 NY Slip Op 60438(U) Reppert's condition, contrary to the objectants' argument, constituted a force majeure, that is, an unexpected event that prevented him from doing or completing something he had agreed or planned to do (see Black's Law Dictionary [11th ed 2019], force majeure). There is a sharp dispute as to who was in attendance at the March 2nd conference. The Judge overseeing this case is RICHARD FRUIN. However, even though Marianne was never formally served with a notice to appoint, it does not necessarily follow that the statutory stay of proceedings continued on ad infinitum, as Marianne contends. MARIANNE NESTOR CASSINI While Harper noted that the Surrogate's Court had allowed Sills Cummis and RK to withdraw by orders dated March 3 and March 14, 2016, respectively, he did not state when he first became aware of the existence of those two orders. 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]). Where counsel is permitted to withdraw, pursuant to CPLR 321 (b) (2), over the client's objection, the 30-day stay of proceedings generally attaches since the court has effectively "removed" counsel for the purpose of CPLR 321 (c) (Albert v Albert, 309 AD2d 884, 886 [2003]; see Matter of Wiley v Musabyemariya, 118 AD3d 898, 899-900 [2014]; Sarlo-Pinzur v Pinzur, 59 AD3d 607 [2009]). The objectants neither demanded such proof nor opposed the withdrawal motion. ORDERED that the appeal by Peggy Nestor from so much of the order as 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 is dismissed, as Peggy Nestor is not aggrieved by that portion of the order (see Mixon v TBV, Inc., 76 AD3d 144, 156-157); and it is further. 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. 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. Matter of Cassini 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. 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. {**182 AD3d at 22}. "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]). Additionally, in Harper's description, "Marianne engaged in a pattern of obstruction the likes of which is rarely seen in litigation." It is undisputed that no party sought leave of the Surrogate's Court to take further proceeding against Marianne and that no formal notice to appoint another attorney was served on her. Marianne did not argue that the court was proceeding to trial in violation of the statutory stay provided for in CPLR 321 (c). 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 appellants are collaterally estopped from relitigating this issue (see Wilson v Dantas, 29 NY3d 1051, 1062; Buechel v Bain, 97 NY2d 295, 303-304). 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. In Telmark, Inc. v Mills (199 AD2d 579 [1993]), the Appellate Division, Third Department, found, on the facts presented, that there was no violation of CPLR 321 (c). Here, we conclude that, through no fault of her own, Marianne was not given adequate and proper notice that the cross motion had been marked submitted in April 2016, and she was not afforded a reasonable opportunity to obtain substitute counsel and submit opposition papers. The record before us contains an order dated March 14, 2016, of the Surrogate's Court, in which the court granted RK's withdrawal{**182 AD3d at 26} motion in the accounting proceeding. Appellate Division of the Supreme Court of New York, Second Department. 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. The order to show cause did not bear Surrogate Reilly's signature above the signature block. The proceedings in the Surrogate's Court, Nassau County, had gone on for many years. In her affidavit submitted in support of that motion, Marianne asserted, as noted above, that during April and May 2016 she met with no fewer than five or six law firms regarding her case and their possible engagement. Cassinis widow Marianne Nestor Cassini has been entangled in years-long legal battles with the designers descendants. . Marianne, in a later affidavit, asserted that immediately upon learning that her attorney's withdrawal motion was granted in the accounting proceeding, she "began attempting to locate and secure new counsel so as to be represented in this proceeding which as this Court is aware involves my life's work as well as millions of dollars." 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. at 1312). In or around December 2015, Marianne's attorneys moved for leave to withdraw from representing her. However, as above noted, there is nothing in the record before us that indicates that anyone served the March 14, 2016 order on anyone else, or that any of the counsel involved in this matter had any contemporaneous awareness of the existence of this order.

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