marianne nestor cassini 2020

Marianne Nestor Cassini Court: SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department Date published: Feb 13, 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. We must now apply our legal conclusions to the resolution of the particular appeals before us. The objectants opposed Marianne's motion to vacate. Get free summaries of new New York Appellate Division, Second Department opinions delivered to your inbox! 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). The court dismissed some objections, held some objections in abeyance, and sustained some objections. Marianne, in an affidavit submitted in connection with a later motion, asserted that she appeared for a court conference conducted by law clerk Keller. . [2] Here, in moving for leave to withdraw from representing Marianne, Reppert asserted that, for medical reasons, he had been unable to fully return to the practice of law full-time since July 2015. While the objectants presented significant evidence in support of their motion, they did not contend that there was any urgency to their application and did not present any evidence of any emergency. Matter of Cassini :: 2020 :: New York Appellate Division, 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. The Surrogate's Court issued an amended order dated November 13, 2017, in which it determined that Marianne's motion was without merit and denied the motion. 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. [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. Second, the defendant responded to that notice by voluntarily electing to proceed pro se. Cassini IN RE: Oleg CASSINI (2020) | FindLaw 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. 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." Keller introduced the receiver to the parties seated around the conference table. at 1312). In particular, Marianne filed the petition for judicial settlement of her intermediate account in December 2010 or January 2011. Harper asserted that, after the March 2nd appearance, neither Marianne nor anyone on her behalf requested time to respond to the cross motion. In May, Marianne Nestor Cassini, 68, traded a multimillionaire's lifestyle for that of an inmate as part of an inheritance fight that has lasted more than a decade. Marianne Cassini spent six months in a Nassau County jail last year after failing to comply with court orders. In McGregor v McGregor (212 AD2d at 956), the attorney of record was disbarred. Marianne moved to dismiss Christina's claim, and Christina cross-moved for summary judgment on the issue of liability. The attorney must demonstrate that good cause exists to end the relationship with the client, such as by showing an irretrievable breakdown in the relationship or a failure of cooperation by the client (see Farage v Ehrenberg, 124 AD3d at 165). 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. In or around December 2015, Marianne's attorneys moved for leave to withdraw from representing her. ", 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). Whether a stay of proceedings should be granted upon an order relieving counsel of record is a matter to be considered further. 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. 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"]). While she is not an attorney, we also recognize that she is a sophisticated litigant and had she raised the issue earlier, much of the ensuing procedural morass may have been avoided. Cassini Harper, in a later affirmation, asserted that McKay refused to make a general appearance on Marianne's behalf and so, when the parties and attorneys moved into a conference with Keller, McKay was asked to leave the conference. Since the death of the Decedent, his estate (the "Estate") has On or about July 11, 2016, Marianne made two pro se motions. Meanwhile, Marianne filed a petition in the Surrogate's Court, Nassau County, for judicial settlement of her intermediate account as executor, covering the period from March 17, 2006, through December 21, 2010, and listing total{**182 AD3d at 18} gross assets of more than $56 million (hereinafter the accounting proceeding). Either way, the stay attaches, but subject to the court's authority to vary it in appropriate cases. 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. Contrary to Marianne's contention, Daria's claim is not barred by California Code of Civil Procedure 366.3. Harper responded by letter dated January 7, 2016, to oppose Kelly's request. 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. 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. Marianne cross-moved, among other things, for summary judgment dismissing objection 34 to the account of the estate. Marianne and her sister Peggy Nestor separately appeal from the order dated November 5, 2015. 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." 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." CPLR 321 provides three pathways by which the attorney of record for a party may seek to be replaced. On 07/27/2020 Marianne Nestor Cassini filed a Property - Other Real Property lawsuit against Brian Curran. 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. SCHEINKMAN, P.J., LEVENTHAL, COHEN and HINDS-RADIX, JJ., concur. You can explore additional available newsletters here. 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. 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. 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 Court of Appeals did not agree: CPLR 321 (c) applies to circumstances in which an event occurs which is personal to the attorney of record which involuntarily prevents the attorney of record from continuing to represent the party, notwithstanding the attorney's willingness to do so (see Hendry v Hilton, 283 App Div at 171). Kelly also acknowledged receiving the separate orders granting Sills Cummis's motions for leave to withdraw. Here, Marianne was given such notice by the Surrogate's Court. This contention is unpersuasive. 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. . 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. After the decedent died in 2006, Marianne Nestor Cassini (hereinafter Marianne), the decedent's widow, was issued letters testamentary as the executor of his estate. 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. at 580-581). Even apart from the violation of CPLR 321 (c), there is an alternative basis for reversal. MATTER OF CASSINI | 180 A.D.3d 773 (2020) 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. 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.". She was also given a period well in excess of 30 days in which to retain counsel. [Scott T. Horn], of counsel), for petitioner-appellant, and Peggy Nestor, New York, NY, respondent-appellant pro se (one brief filed). Christina subsequently commenced a 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. Eventually, Christina, individually and as administrator of Daria's estate, filed objections to Marianne's intermediate account. Reppert did not provide any details as to his medical condition or treatment, but offered to do so in camera upon the court's request. VI. Fashion icon's widow recently held in contempt amid They did not seek relief on an expedited basis by applying for an order to show cause. Her legal team had tried to stop the auction in recent weeks. Ordered that one bill of costs is awarded to the petitioner. 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]). 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. Defino v. Cassini, 2021 N.Y. Slip Op. 30236 - Casetext We do so because. Matter of Cassini 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. Seddio & Associates, P.C., Brooklyn, NY (Frank R. Seddio and Mischel & Horn, P.C. Kelly therefore asked the court to sever the cross motion from the motions for leave to withdraw, and to adjourn the cross motion to a date to be scheduled by the court upon or following the disposition of the withdrawal motions. 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). Subsequently, this Court, inter alia, denied that branch of Marianne's motion which was to stay enforcement of the orders dated November 14, 2017, and December 21, 2017, pending hearing and determination of the appeals. The objectants did not oppose the withdrawal motions. Meanwhile, Daria died in 2010, and Christina, the sole distributee of Daria's estate, was appointed to serve as the administrator of Daria's estate. The March 14, 2016 order required the movant, RK, to serve the order upon Marianne and all interested parties within 10 days. The decedent's will did not provide for the testamentary disposition specified in the PSA, so Christina asserted a claim against the decedent's estate and, essentially, sought to have a constructive trust imposed on certain estate assets (see id. 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. Since the issuance of the July 1, 2016 order violated the statutory stay, it should have been vacated. Christina's claim was based on a "Property Settlement Agreement" (hereinafter the PSA) which was entered into by the decedent and Tierney. 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 NESTOR CASSINI 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. Here, both RK and Sills Cummis described themselves and were simultaneously recognized without objection as being attorneys of record for Marianne, although Sills Cummis's role, as described by Kaplan, was to assist Reppert and RK. "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 use of a stipulation of substitution, which avoids expense and delay, is common where the client, the outgoing attorney, and the incoming attorney (who could be the client pro se) are entirely in agreement on the substitution (see Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C321:2 at 181 [2010 ed]). 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). 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 Oleg Cassini's widow released from Nassau's jail Oleg Cassini Widow | Marianne Nestor | Gramercy She did not return during the trial. 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. In a probate proceeding in which Marianne Nestor Cassini, the former executor of the estate of Oleg Cassini, petitioned for judicial settlement of her In this case, Marianne had two distinct attorneys of record. 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. {**182 AD3d at 41}. "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. Christina petitioned pursuant to SCPA 1809 to determine the validity of her claim against 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. WebMarianne, and her sister Peggy Nestor who had been nominated in the decedents will as a successor executor, now separately appeal from so much of an order dated August 3, 2015, as granted that branch of the objectants motion which was to appoint a temporary receiver to the extent of appointing Jeffrey DeLuca, the Public Administrator of Nassau 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. 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. In any event, no one served her with it. three witnesses. There also may be no available record that documents the nature and extent of the disability or establishes when the disability arose. at 1312). 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. {**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. 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. On May 23, 2016, Kelly again called the court. 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." 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 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.). Marianne did not argue that the court was proceeding to trial in violation of the statutory stay provided for in CPLR 321 (c). Harper asserted that "Marianne decided to remain at the June 8, 2016 conference and to represent herself." of County Attorney, 61 NY2d 739, 742 [1984] [internal quotation marks omitted]; see Wells Fargo Bank Minn., N.A. 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. In any event, contrary to the appellants' contention, our holding in Nestor v Putney Twombly Hall & Hirson, LLP (153 AD3d 840) is not inconsistent with Astoria Fed. The PSA was incorporated verbatim, in its entirety, into an interlocutory judgment of divorce (see id.). The copy of the order in the record does not contain a filed or entered stamp affixed by the Clerk of the Court. Again, Marianne did not raise any issue regarding a stay under CPLR 321 (c). Appellate Division, Second Department Marianne did not contend in her motion that she was compelled to make it pro se. 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. Christina, individually and as administrator of Daria's estate, filed objections to the account. 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. [Scott T. Horn], of counsel), for petitioner-appellant. Corp. v Pellicane (78 AD3d 622), which involved a Florida statute providing that two years after the death of a person, neither the decedent's estate, the personal representative, nor the beneficiaries shall generally be liable for any claim or cause of action against the decedent (see Fla Stat Ann 733.710[1]). 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. CASSINI Thus, Marianne knew as of June 8, 2016, that she had to retain new counsel if she wanted to have counsel represent her at the trial. Oleg Cassini The inclusion of Kelly of RK, and the exclusion of Marianne, as recipient of the motion, supports a conclusion that Farrell Fritz, P.C., as attorneys for the movants, was unaware, as of May 13, 2016, that RK's motion for leave to withdraw had been decided two months earlier. . We conclude that it was not, bearing in mind that on the July 25, 2016 trial date, Marianne appeared with prospective counsel, McKay. 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. Cassini MATTER OF CASSINI | 2020 NY Slip Op 60438(U) 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." Reppert and his firm filed three identical motions for leave to withdraw as counsel, in the accounting proceeding and in two related proceedings, one commenced by the Public Administrator against Marianne to turn over property alleged to belong to the estate (hereinafter the turnover proceeding), and the other a proceeding relating to a special needs testamentary trust established by Marianne for Daria in accordance with the decedent's will (hereinafter the SNT proceeding). It may be questioned whether, as here, CPLR 321 (c) has any application at all to a circumstance where the attorney of record is a law firm composed of multiple individual attorneys. 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). 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. In contrast, Harper, in an affirmation submitted in connection with a later motion, asserted that neither Marianne nor any attorney from RK or Sills Cummis appeared before the court on March 2, 2016. This site is protected by reCAPTCHA and the Google, New York Appellate Division, Second Department, New York Appellate Division, Second Department Decisions. 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. The Interplay between CPLR 321 (b) and (c). 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. Legal Battles Over Oleg Cassinis Estate Continue - WWD John Barnosky, pro se, and Farrel Fritz, Uniondale (Robert Harper of counsel), for John Barnosky and others, objectants-respondents. According to Harper, the court granted Marianne time to retain new counsel, scheduling an appearance on the cross motion for March 2, 2016. Marianne Nestor Cassini claims the county, Surrogate Court Judge Margaret Reilly, Nassau Public Administrator Brian Curran, the Nassau Sheriff and numerous others want to get Mrs. Cassini out of the way while they sold-off her and her husbands property for their own personal profit. He spoke directly with Keller. Reppert had represented the decedent for more than 15 years and represented OCI and Marianne for more than 20 years. [*1]In the Matter of Oleg Cassini, deceased. The defendant then proceeded pro se, which she had the right to do (see id. 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. The trial did not proceed. 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. 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 August 2015 order also suspended any authority of Marianne and Peggy to perform any acts as managers, directors, or officers of OCI and CPL. The Court of Appeals reversed, stating: The Court explained why it rejected two arguments the defendant made. McKay, in a later affirmation, asserted that Marianne asked him to accompany her to a conference, with a view toward representing her to the conclusion of the matters. 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.". Developments Subsequent to the Orders Appealed From. Kelly averred that he was told, inter alia, that the motions had not yet been decided.[FN3]. together the objectants) were substituted into the proceeding as executors of Christina's estate and successor administrators of Daria's estate. In a probate proceeding in which Marianne Nestor Cassini, the former executor of the estate of Oleg Cassini, petitioned for judicial settlement of her [FN9] There, the defendant's attorney notified the parties that he had been suspended from practice and had advised the defendant to{**182 AD3d at 51} obtain the services of another attorney. He asserted that Kelly's request should be denied in view of the actions by Marianne and Peggy which were exposing OCI and CPL to waste and "immediate" harm.