marianne nestor cassini 2020 marianne nestor cassini 2020

On June 8, 2016, Marianne appeared in the Surrogate's Court with attorney Robert McKay. In this Court, Marianne unsuccessfully sought to stay the accounting trial (2016 NY Slip Op 81906[U] [2016]). Pursuant to a choice-of-law provision, the PSA was to be construed and interpreted in accordance with California law. 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. Those objections alleged that Marianne's account of the decedent's estate omitted certain items that had been previously identified as assets of the estate by Marianne in various documents, including a New York State estate tax return executed by Marianne in her capacity as executor of the decedent's estate. 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"]). 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. 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. He came to the United States as a young man after starting as a designer in Rome, and quickly got work with Paramount Pictures. {**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. {**182 AD3d at 22}. Telmark is instructive in several respects. He asserted that he was "physically unable to provide the representation that is necessary to properly represent [his client]," Marianne. 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. She pointed out that Reppert's affirmation submitted in support of the withdrawal motion expressly referenced CPLR 321 (c). 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. 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." 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. VI. 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. Marianne urged that Reppert's affirmation made clear that he was willing to provide additional medical proof at the court's request. On May 23, 2016, Kelly again called the court. marianne nestor. The court surcharged Marianne more than $20 million in principal together with nine percent annual interest, compounded. 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. 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. However, the court has the authority to grant leave for proceedings to be conducted despite the stay. 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. SCHEINKMAN, P.J., LEVENTHAL, COHEN and HINDS-RADIX, JJ., concur. Here, Marianne was given such notice by the Surrogate's Court. Marianne and her sister Peggy Nestor separately appeal from the order dated November 5, 2015. You can explore additional available newsletters here. 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. Matter of Cassini In a probate proceeding in which Marianne Nestor Cassini, the former executor of the estate of Oleg Cassini, petitioned for judicial settlement of her The court stated that the same relief was requested and denied at the trial, and that the trial had taken place. On 07/27/2020 Marianne Nestor Cassini filed a Property - Other Real Property lawsuit against Brian Curran. Generally, "a person is aggrieved when he or she asks for relief but that relief is denied in whole or in part. The Pathways for Replacing an Attorney of Record. {**182 AD3d at 27}It is notable that proceedings took place on April 6, 2016, without Marianne's participation, in the context of the accounting proceeding. Skip Again, we disagree. The disability, whatever its nature, must be such that effectually prevents the attorney from continuing the representation of the client (see Hendry v Hilton, 283 App Div at 171; see also Winney v County of Saratoga, 252 AD2d at 883). 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. The trial commenced as scheduled. 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). They did not seek relief on an expedited basis by applying for an order to show cause. Kelly also acknowledged receiving the separate orders granting Sills Cummis's motions for leave to withdraw. Reppert had represented the decedent for more than 15 years and represented OCI and Marianne for more than 20 years. We conclude that it was not, bearing in mind that on the July 25, 2016 trial date, Marianne appeared with prospective counsel, McKay. Second, the defendant responded to that notice by voluntarily electing to proceed pro se. 773 [2020]; Matter of Cassini, 180 AD3d 775 [2020]). 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. [FN7] However, Marianne, in a later affidavit, claimed that no one at the June 8th conference mentioned the cross motion. 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 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]). 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. 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]). 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.". 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. This appeal is one of several arising out of a protracted and vigorously contested probate proceeding involving the estate of the internationally renowned fashion designer Oleg Cassini (hereinafter the decedent), who died in March 2006. 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 claimed that over the next five weeks, he called the Surrogate's Court multiple times. 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 First, the defendant pointed out that CPLR 321 (c) permits further proceedings by leave of the court, and contended that the Supreme Court exercised that express statutory authority to hear and grant the defendant's motion to dismiss after the plaintiff's attorney was suspended from the practice of law. According to Harper, during that conference, Shifrin asked Marianne whether she had undertaken any efforts to retain new counsel. at 1312). 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]). 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). However, since none of the parties have addressed, much less given any significance to, the duality of counsel, we note the circumstance but do not comment further on it. 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. 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. 2020) 120 N.Y.S.3d 103. 182 AD3d 1 [2020]). By the terms of the statute, the termination of the stay is dependent upon service of a notice to appoint by the adverse party or parties, with the notice to be served personally or as the court directs. [FN1], The objectants did not oppose the motions by RK and Sills Cummis for leave to withdraw. When the Surrogate's Court set July 25, 2016, as the trial date, McKay withdrew and, averred Marianne, "the Court indicated that it would not change the July 25, 2016 date and the Court further stated words to the effect that it would proceed with{**182 AD3d at 53} the trial with or without me and with or without counsel." By the order dated March 6, 2017, the Surrogate's Court denied her motion to vacate. 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. There also may be no available record that documents the nature and extent of the disability or establishes when the disability arose. 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. . The receiver, in a later affidavit, asserted that she appeared in court on July 13, 2016, to meet with the parties. Soon after the parties gave their appearances, Marianne stated: The Surrogate's Court stated that Marianne's application was denied. 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. We find support for this conclusion in Telmark, where the party was put on notice by his own attorney of the need to find a replacement (see Telmark, Inc. v Mills, 199 AD2d at 580). Where the attorney of record has died, been disbarred, or has been suspended from practice, the fact of the attorney's inability to proceed further is readily established by a documentary record, such as a death certificate or court order. This contention is unpersuasive. Get free summaries of new New York Appellate Division, Second Department opinions delivered to your inbox! Oleg Cassini (hereinafter the decedent), the internationally renowned fashion designer, died in March 2006 (see Matter of Cassini, 120 AD3d 799, 799 [2014]). The order, insofar as appealed from, granted those branches of the objectants' motion which were for summary judgment sustaining certain objections to the account of the estate and 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. 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. 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. The March 14, 2016 order, also like the two earlier orders, set forth the Surrogate's Court's finding and determination that Reppert was unable to continue to represent Marianne "due to health reasons." She was no stranger to litigation. The case 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. Harper also stated that, after the April court date, the cross motion was submitted for decision. at 1312). 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. 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." 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). 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. Oleg Cassini's widow files $350M lawsuit over long estate battle April 2, 2022 | 10:01am. Keller told Kelly that RK's motion for leave to withdraw in the accounting proceeding had been granted in March 2016. 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). 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. There is a sharp dispute as to who was in attendance at the March 2nd conference. Her legal team had tried to stop the auction in recent weeks. 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. The order to show cause did not bear Surrogate Reilly's signature above the signature block. 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. [4] The objectants made their cross motion in response to the motion made by RK for leave to withdraw. The objectants neither demanded such proof nor opposed the withdrawal motion. 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]). Additionally, in Harper's description, "Marianne engaged in a pattern of obstruction the likes of which is rarely seen in litigation." Kelly averred that he called and spoke with Keller on or about March 16, 2016, to inform her that RK had not received an order determining its motion in the accounting proceeding. {**182 AD3d at 41}. This was, under the circumstances, the practical equivalent of more than 30 days' notice to the litigant to appoint new counsel. 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. together the objectants) were substituted into the proceeding as executors of Christina's estate and successor administrators of Daria's estate. ", Eight days later, on March 24, 2016, having received nothing further from the Surrogate's Court, Kelly wrote to Keller by email, asserting that he was reminding the court that RK had not received a decision on its withdrawal motion in the accounting proceeding. The amended order dated November 13, 2017, denied Marianne's motion to vacate and declare void all decisions, orders, and judgments entered after March 14, 2016, as violative of the CPLR 321 (c) stay. Keller said that she was aware of that and that an order granting RK's withdrawal motion in the accounting proceeding "would be going out 'in the next day or two.' Kaplan, in support of the motion by Sills Cummis for leave to withdraw, asserted, in an affirmation submitted in the accounting proceeding, that his role had been to assist Reppert and, with Reppert's health precluding him from continuing to represent Marianne, Kaplan's role was "also ending." The March 14, 2016, order, like the two earlier orders, granted RK's motion for leave to withdraw and provided for a stay of all proceedings for 30 days, which stay took effect as of the date of the March 14, 2016 order. 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. Likewise, while Marianne, on or about June 17, 2016, executed an affidavit in opposition to the objectants' motion to preclude evidence in the accounting proceeding, this affidavit was submitted under compulsion of the June 9, 2016 order and cannot be considered a voluntary election to appear pro se. While no medical testimony or documentation was provided, and the{**182 AD3d at 48} Surrogate's Court might well have denied the withdrawal motion for that reason (see Matter of Plaro Estates, Inc. v Assessor, 101 AD3d 886, 888 [2012]; Winney v County of Saratoga, 252 AD2d at 883), or requested the submission of supporting medical documentation, the court evidently was satisfied that Reppert's condition was serious and substantial, as evidenced by its unchallenged finding that Reppert was unable to continue with the representation. The evidence presented included exhibits numbered up to 171 and 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. The Amended Order Dated November 13, 2017, By notice of motion dated April 12, 2017, Marianne moved pro se to{**182 AD3d at 36}. 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. 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. Either way, the stay attaches, but subject to the court's authority to vary it in appropriate cases. 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). The court dismissed some objections, held some objections in abeyance, and sustained some objections. The service of a formal written notice to appoint from and after June 8, 2016, would have been an idle formality since Marianne knew, and was specifically advised by the court, that, if she wanted to have counsel, she would have to have one by the July 25, 2016 trial date. Likewise, a stay may be refused where the removal of counsel was the product of the client's own wrongful act (see RDLF Fin. 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. WebMarianne served as executor of the decedent's estate for several years (see id. She averred that it took her at {**182 AD3d at 28}least two weeks to secure the voluminous file from her attorneys. at 842). 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 Public Administrator joined in that cross motion. 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. WebCassini (hereinafter the decedent), who died in March 2006. 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. The defendant then proceeded pro se, which she had the right to do (see id. 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. . 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. We consider the context of this matter as well in reaching our conclusion. 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. Date published: Feb 13, 2020. CPLR 321 provides three pathways by which the attorney of record for a party may seek to be replaced. However, despite knowing that Marianne's counsel was seeking to be relieved and seeking to have a stay imposed pending service of a notice to appoint successor{**182 AD3d at 21} counsel, the objectants cross-moved to appoint a receiver. 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.). She was also given a period well in excess of 30 days in which to retain counsel. 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 March 6, 2017 order provided, in part: B. Marianne Nestor Cassini, the widow of fashion designer Oleg Cassini, sits outside Nassau Surrogate's Court on Aug. 16. Credit: Bridget Murphy. As will be discussed further infra, where an attorney seeks leave to withdraw under CPLR 321 (b) (2), the court may stay proceedings pending the determination of the motion and after the determination. No order of severance or other formal documentation of this court action was issued. 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. 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. Indeed, the Surrogate's Court's own statement that the cross motion was submitted, unopposed, in April 2016, raises questions. On 02/16/2010 MARIANNE NESTOR CASSINI filed a Property - Other Real Property lawsuit against CHRISTINA TIERNEY CASSINI. In the email, Shifrin stated that the Surrogate had asked him to advise counsel that the court had decided to sever the cross motion to appoint a receiver and that opposition to the cross motion was not presently required. 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 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. 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. 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.