marianne nestor cassini 2020

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 Amended Order Dated November 13, 2017, By notice of motion dated April 12, 2017, Marianne moved pro se to{**182 AD3d at 36}. The case Marianne and her sister Peggy Nestor separately appeal from the order dated November 5, 2015. 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. No adjournments were allowed; if no opposition was interposed, the motion would be submitted without it.[FN6]. Stated differently, where an attorney of record becomes disabled from further{**182 AD3d at 43} participating in the case, the attorney may seek to be replaced by consent through a stipulation of substitution (CPLR 321 [b] [1]), or the attorney could seek to be relieved by court order (CPLR 321 [b] [2]), or the party represented by the attorney could be compelled to replace the attorney by service of a notice to appoint by the adverse party (CPLR 321 [c]). The order to show cause did not bear Surrogate Reilly's signature above the signature block. 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 court dismissed some objections, held some objections in abeyance, and sustained some objections. {**182 AD3d at 40}, VIII. Corp. v Eves, 232 AD2d 370, 370-371 [1996] [no stay where client voluntarily discharged attorney on the first day of trial]). Marianne Nestor, the widow of late fashion designer Oleg Cassini, is in jail for not following court orders related to the protracted legal battle over his $55 million estate. 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. Thus, since she asked for relief but that relief was denied, Marianne is aggrieved by the March 6, 2017 order from which she appeals. The stay was still in effect on June 29, 2016, when the court issued its determination to grant the cross motion to appoint a receiver upon default. Ordered that the appeals from the orders dated November 14, 2017, and December 21, 2017, respectively, are dismissed; and it is further. 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). {**182 AD3d at 47} Whether such a disability has occurred, and when it occurred, may not always be readily known and, in particular, known to the adverse party. Developments Subsequent to the Orders Appealed From. 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. Under the circumstances, the notification by the court to Marianne was the functional, practical equivalent of a notice to appoint a new attorney. The November 14, 2017 order stated, in part: {**182 AD3d at 38}D. The Order Dated December 21, 2017. 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. at 1312). In this Court, Marianne unsuccessfully sought to stay the accounting trial (2016 NY Slip Op 81906[U] [2016]). Cassinis widow Marianne Nestor Cassini has been entangled in years-long legal battles with the designers descendants. No order of severance or other formal documentation of this court action was issued. Second, the defendant responded to that notice by voluntarily electing to proceed pro se. Matter of Cassini We also note that Marianne never raised the issue of the CPLR 321 (c) stay until April 2017, when she moved to vacate and nullify all judicial determinations made since March 14, 2016. We do so because. The Withdrawal of Marianne's Counsel. 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. The order allowed Sills Cummis to withdraw and stated that "all proceedings in the instant proceeding are stayed for a period of thirty (30) days of the date hereof." 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's claims against OCI and CPL were disallowed. The trial commenced as scheduled. Harper also stated that, after the April court date, the cross motion was submitted for decision. 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. On June 29, 2016, Marianne again appeared in court with McKay. 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. While it does not appear that the Surrogate's Court took Reppert up on his offer to share medical information with the court privately, the court, in granting Reppert's motions for leave to withdraw, made the specific finding and determination that Reppert was "unable to continue to represent [Marianne] due to health reasons." 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. Christina's claim was based on a "Property Settlement Agreement" (hereinafter the PSA) which was entered into by the decedent and Tierney. Christina petitioned pursuant to SCPA 1809 to determine the validity of her claim against Second, a person is aggrieved when someone asks for relief against him or her, which the person opposes, and the relief is granted in whole or in part" (Mixon v TBV, Inc., 76 AD3d 144, 156-157 [2010] [emphasis and footnotes omitted]). 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. [3] CPLR 321 (c) provides that, where an attorney becomes disabled, "no further proceeding shall be taken in the action{**182 AD3d at 50} against the party for whom he [or she] appeared, without leave of the court, until thirty days after notice to appoint another attorney has been served upon that party either personally or in such manner as the court directs." Even if it is assumed that this finding was not imported into the accounting proceeding until the March 14, 2016 order relieving RK made in that proceeding, and that the stay did not take effect in that proceeding until March 14, 2016, there is no significant consequence as it does not appear that any judicial determinations were rendered in the interval between February 16 and March 14, 2016. In an affirmation executed two week later, in support of Sills Cummis's motion for leave to withdraw, Kaplan asserted that his firm's role in the matter was ending "[n]ow that Mr. Reppert's health prevents him from continuing to represent Marianne before this Court." ORDERED that the order is affirmed insofar as appealed from by Marianne Nestor Cassini and insofar as reviewed on the appeal by Peggy Nestor; and it is further. She was also given a period well in excess of 30 days in which to retain counsel. of County Attorney, 61 NY2d 739, 742 [1984] [internal quotation marks omitted]; see Wells Fargo Bank Minn., N.A. WebIn a probate proceeding in which Marianne Nestor Cassini, the former executor of the estate of Oleg Cassini, petitioned for judicial settlement of her intermediate account of 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. ", Similarly, in a later affidavit, Marianne asserted that on June 8, 2016, the Surrogate's Court directed that the trial would proceed on Monday, July 25, 2016. "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 court stated that the same relief was requested and denied at the trial, and that the trial had taken place. 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. The proceedings in the Surrogate's Court, Nassau County, had gone on for many years. 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. Marianne Nestor Cassini claims the county, Surrogate Court Judge Margaret Reilly, Nassau Public Administrator Brian Curran, the Nassau Sheriff and numerous Generally, "a person is aggrieved when he or she asks for relief but that relief is denied in whole or in part. Marianne did not argue that the court was proceeding to trial in violation of the statutory stay provided for in CPLR 321 (c). At the conclusion of the June 8th conference, Marianne claims she was told that there would be another conference on June 29, 2016. Pursuant to a choice-of-law provision, the PSA was to be construed and interpreted in accordance with California law. 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. 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. There is a sharp dispute as to who was in attendance at the March 2nd conference. 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). 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 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. 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. Citing Cases. You're all set! Accordingly, (1) the appeals from the orders dated November 14, 2017, and December 21, 2017, respectively, are dismissed,{**182 AD3d at 58} (2) the order dated March 6, 2017, is reversed, on the law, the petitioner's motion to vacate the order dated July 1, 2016, is granted, the order dated July 1, 2016, is vacated, the matter is remitted to the Surrogate's Court, Nassau County, for a new determination of the objectants' cross motion to appoint a receiver, and pending the new determination of the cross motion, the receiver appointed pursuant to the order dated July 1, 2016, shall continue as temporary receiver, and (3) the amended order dated November 13, 2017, is reversed, on the law, the petitioner's motion to vacate and declare void all decisions, orders, and judgments entered after March 14, 2016, is granted to the extent that all decisions, orders, and judgments entered in all proceedings herein between March 14, 2016, and July 25, 2016, are vacated, and the motion is otherwise denied. [4] The objectants made their cross motion in response to the motion made by RK for leave to withdraw. 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. 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. In particular, Marianne filed the petition for judicial settlement of her intermediate account in December 2010 or January 2011. Marianne asserted that no such notice was ever given and, therefore, all motions, orders, decisions, judgments, and proceedings that happened after March 14, 2016, including but not limited to the order, in effect, granting the cross motion to appoint a receiver, as well as the trial, were null and void and must be vacated. 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. On 07/27/2020 Marianne Nestor Cassini filed a Property - Other Real Property lawsuit against Brian Curran. Ordered that one bill of costs is awarded to the petitioner. In light of our determination, we need not reach the objectants' remaining contentions. Additionally, in Harper's description, "Marianne engaged in a pattern of obstruction the likes of which is rarely seen in litigation." It would make little sense to construe the statute as conferring a stay to protect a client who opposed counsel's application to withdraw due to disability, despite knowing of the attorney's incapacity, while denying a stay to a client who, recognizing that the attorney was disabled, did not object to the attorney's{**182 AD3d at 49} request to withdraw. 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 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. According to Marianne, the stay continued until 30 days after the attorney for the adverse party sent the notice to appoint attorney required by CPLR 321 (c). 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. Marianne commenced an action, in California, for declaratory relief, seeking a judicial determination regarding the parties' respective rights and obligations under the judgment of divorce. The objectants argue that Marianne is not aggrieved by the order appointing a receiver since the Surrogate's Court determined that OCI and CPL are estate assets and Marianne is no longer an estate fiduciary. The notice of motion lists the motion as being addressed to Kelly of RK, to the attorney for the Public Administrator, and to Peggy. Following the recess, the court announced that it appeared Marianne had left. Reppert's medical condition, which deteriorated well after he began representing Marianne in lengthy, protracted proceedings, was a cause over which Marianne had no control and was not due to fault on her part. 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. 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). She pointed out that Reppert's affirmation submitted in support of the withdrawal motion expressly referenced CPLR 321 (c). Had they done so, the Surrogate's Court's granting of an order to show cause could have been viewed as allowing the application to go forward notwithstanding the court's own stay. The Public Administrator also opposed Marianne's motion to vacate and did so for the same reasons set forth in the objectants' opposition. 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. 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.' In doing so, this Court concluded that California Code of Civil Procedure 366.3 is a procedural statute of limitations, and not a statute of repose, and thus was inapplicable to the Surrogate's Court proceeding in New York (see Nestor v Putney Twombly Hall & Hirson, LLP, 153 AD3d at 842-843). 773 [2020]; Matter of Cassini, 180 AD3d 775 [2020]). The court surcharged Marianne for, among other things, refusing to comply with the court's determination that the claims of Christina and Daria were valid, making unauthorized transfers of funds from OCI and CPL, making unauthorized payments from OCI, and failing to collect receivables. 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.). ", 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. Am., 93 NY2d 48, 55, quoting Siegel, NY Prac 34 at 38 [2d ed]). Harper asserted that "Marianne decided to remain at the June 8, 2016 conference and to represent herself." 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. 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. 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. 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. According to Harper, when the attorneys of record confirmed that the cross motion to appoint a receiver had been previously submitted for decision, Marianne did not dispute that fact, did not request the opportunity to oppose the cross motion, and did not indicate that she needed to discuss that cross motion with counsel. Marianne claimed that she was told that the next court appearance would be on June 8, 2016. 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. "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]). 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 record includes papers in connection with motions for leave to withdraw made separately by RK and by Sills Cummis. (15 NY3d 384 [2010]). Since the death of the Decedent, his estate (the "Estate") has The evidence presented included exhibits numbered up to 171 and The Court of Appeals doubtless did not envisage Telmark as eviscerating the shield afforded litigants by CPLR 321 (c), but rather as preventing a litigant from using the statute as a sword by taking undue advantage through the stratagem of voluntarily proceeding pro se while keeping the CPLR 321 (c) issue in a back-pocket in order to belatedly nullify any adverse results. They did not seek relief on an expedited basis by applying for an order to show cause. Keller told Kelly that RK's motion for leave to withdraw in the accounting proceeding had been granted in March 2016. 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. The objectants argued that the Surrogate's Court granted RK's motion for leave to withdraw as Marianne's counsel pursuant to CPLR 321 (b) (2), not CPLR 321 (c), and thus the stay Marianne claimed to have arisen under CPLR 321 (c) did not apply. He was survived by his wife, Marianne Nestor Cassini (hereinafter Marianne), and two daughters from his prior Citations Copy Citations. Marianne, in an affidavit submitted in connection with a later motion, asserted that she appeared for a court conference conducted by law clerk Keller. In making this finding and determination, the court provided the basis for a discretionary withdrawal of counsel under CPLR 321 (b) (2) and simultaneously activated the automatic stay provisions of CPLR 321 (c), as Reppert's judicially determined inability to continue to represent Marianne for health reasons constituted a finding of disability for the purpose of CPLR 321 (c). Accepting Marianne's version of events, she stated that she had engaged McKay to represent her, with both Marianne and McKay understanding that no trial date had been set. 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. Moray involved the circumstance where the attorney of record was suspended from the practice of law. Leventhal, Cohen and Hinds-Radix, JJ., concur. 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). Here, however, there is nothing in the record indicating that Marianne's voluntary act or wrongdoing caused Reppert's withdrawal. 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. In 1952, the decedent and his then-wife Gene Tierney entered into a "Property Settlement Agreement" (hereinafter the PSA) that was incorporated by reference into a California final judgment of divorce entered April 7, 1953. Mtge. 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. They further argued that RK employed at least one attorney besides Reppert, namely, Kelly, who was quite familiar with the proceeding. According to Harper, Marianne previously attested that OCI and CPL belonged to the decedent's estate but, after it was concluded that Christina had a one-quarter interest in the estate, Marianne claimed that Marianne, individually, owned all of the estate assets. 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 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'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. The adverse parties themselves failed to serve the orders and also to serve the petitioner with a notice to appoint new counsel. 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. IX. Kelly further stated that he had contacted counsel for the objectants, Robert M. Harper of Farrell Fritz, P.C., to request consent to adjourn the cross motion until after the motions for leave to withdraw were heard, but Harper refused to consent. In late January, Nestor Cassini was released after being held for six months in a Nassau County jail for defying a judges order to turn over financial statements and business records, among other material. At that time, she described the incident as an abuse of power and alleged the judge breached her own served order. The Judge overseeing this case is RICHARD FRUIN. Kaplan further averred that Marianne had made statements which prevented him from representing her in the absence of Reppert continuing to serve as lead counsel. Appellate Division, Second Department 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. 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). The order recited, among other things, that at a conference, the receiver advised the court of Marianne's continued lack of cooperation and ongoing refusal to comply with the receiver's requests for access, information, and documents, thus impeding the receiver's attempts to ascertain and preserve the property belonging to OCI and CPL, and that the receiver made an oral application, in which both the Public Administrator and the objectants joined, to direct Marianne to comply with all requests for access, information, and documents contained in a prior correspondence of the receiver.

I Visited A Parallel Universe, 4c Of Sti College, Raf Menwith Hill Underground, Articles M