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. (15 NY3d 384 [2010]). Mtge. The case Ordered that 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; and it is further. Cassini Second, in an order dated November 5, 2015, the Surrogate's Court, upon a decision dated October 9, 2015, granted the objectants' motion for summary judgment sustaining certain specified objections to Marianne's account. At the conclusion of the June 8th conference, Marianne claims she was told that there would be another conference on June 29, 2016. That action was dismissed for lack of personal jurisdiction over an indispensable party (see Cassini v Belmont, 2012 WL 3594378, 2012 Cal App Unpub LEXIS 6167 [Aug. 22, 2012, No. Marianne Nestor Cassini Court: SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department Date published: Feb 13, The Interplay between CPLR 321 (b) and (c). Get free summaries of new New York Appellate Division, Second Department opinions delivered to your inbox! Soon after the parties gave their appearances, Marianne stated: The Surrogate's Court stated that Marianne's application was denied. {**182 AD3d at 37}. 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. Although not part of these appeals, the record reflects that the Surrogate's Court issued a decision after trial dated December 19, 2017. Appellate Division of the Supreme Court of New York, Second Department. The record includes papers in connection with motions for leave to withdraw made separately by RK and by Sills Cummis. She claimed that she was never informed of a date when her opposition to the cross motion would be due, or when it was to be rescheduled. 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. Consequently, despite these anomalous facts, we approach our analysis upon the predicate that Reppert was, in effect, a solo practitioner and the exclusive attorney of record for Marianne. B230315]). One of those motions was to adjourn the trial. 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. [FN8] Withdrawal is not, however, available for the mere asking, particularly when some significant court action is pending, such as the commencement of a trial. 182 AD3d 1 [2020]). Harper asserted that "Marianne decided to remain at the June 8, 2016 conference and to represent herself." The bodies of the orders are substantively identical and state: Even though a stay of two of the three pending proceedings was in effect, and the motions for leave to withdraw were still sub judice in the accounting proceeding, there was an appearance in the Surrogate's Court on March 2, 2016, in relation to the cross motion to appoint a receiver. In or around December 2015, Marianne's attorneys moved for leave to withdraw from representing her. Marianne's appeal from the order dated November 14, 2017, inter alia, granting the receiver's motion to hold her in contempt, must be dismissed, because Marianne did not oppose the motion, and no appeal lies from an order entered upon the default of the appealing party (see CPLR 5511; HSBC Bank USA, N.A. Marianne Nestor | New York Post [FN10] We thus treat July 25, 2016, as the terminus of the CPLR 321 (c) stay. Matter of Cassini {**182 AD3d at 41}. "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 Amended Order Dated November 13, 2017, By notice of motion dated April 12, 2017, Marianne moved pro se to{**182 AD3d at 36}. 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. 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. 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. 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. They urged that for CPLR 321 (c) to apply based on a party's attorney's mental or physical incompetency, the attorney's withdrawal application had to be supported by medical proof to substantiate the attorney's condition. 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. Marianne, who was nominated in the decedent's will as the executor of his estate, was issued letters testamentary. at 1312). "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]). Oleg Cassini's widow files $350M lawsuit over long estate battle April 2, 2022 | 10:01am. In any event, no one served her with it. On 02/16/2010 MARIANNE NESTOR CASSINI filed a Property - Other Real Property lawsuit against CHRISTINA TIERNEY CASSINI. Keller introduced the receiver to the parties seated around the conference table. 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. "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. Both CPLR provisions address the replacement of an attorney of record, approaching the topic as if there is but one singular attorney who represents the party in question. 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, Kelly claimed that over the next five weeks, he called the Surrogate's Court multiple times. at 1312). Cassini 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). The objectants asserted that Marianne commenced the Accounting Proceeding in January 2011, that the trial was originally scheduled for August 2015, but CPLR 321 (c) expressly permits the court to grant leave to continue the proceedings, and deny a stay, in particular cases where the attorney of record has been removed or suspended. 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. [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. Kelly stated that he just received the cross motion to appoint a receiver, also returnable on January 13, 2016, which he described as voluminous and complex and which, he asserted, bore no relationship to the pending motions for leave to withdraw. The Public Administrator also opposed Marianne's motion to vacate and did so for the same reasons set forth in the objectants' opposition. {**182 AD3d at 40}, VIII. Oleg Cassini (hereinafter the decedent), the internationally renowned fashion designer, died in March 2006 (see Matter of Cassini, 120 AD3d 799, 799 [2014]). 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. 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 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. Case Summary. 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. 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. Christina, individually and as administrator of Daria's estate, filed objections to the account. On June 8, 2016, Marianne appeared in the Surrogate's Court with attorney Robert McKay. In June 2014, after Christina petitioned for Marianne's removal as executor and the Public Administrator of Nassau County was appointed as temporary administrator of the estate, the Public Administrator was appointed administrator c.t.a., by agreement of the parties.