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." Appellate Division of the Supreme Court of New York, Second Department. "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]). Harper, in an affirmation submitted in connection with a later motion, asserted that no attorney from either RK or Sills Cummis appeared on the return date of the withdrawal motions even though an appearance typically was required on the return date of a motion in the Surrogate's Court. 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. 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. [Scott T. Horn], of counsel), for petitioner-appellant. That same day, the Surrogate's Court distributed copies of its decision dated June 29, 2016, determining to grant the objectants' cross motion to appoint a receiver (2016 NY Slip Op 32022[U] [Sur Ct, Nassau County 2016]). 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"]). 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]). Following Christina's death in 2015, attorney John J. Barnosky and Alexandre Cassini Belmont (hereinafter. [FN10] We thus treat July 25, 2016, as the terminus of the CPLR 321 (c) stay. 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. The objectants also argue that neither the November 14, 2017 nor the December 21, 2017 orders are appealable and that, in any event, such orders are valid. 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. 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. Harper responded by letter dated January 7, 2016, to oppose Kelly's request. The conduct of such proceedings contravened the terms of the March 14, 2016 order, providing for a 30-day stay of proceedings in the accounting proceeding as of the date of the order. ORDERED that one bill of costs is awarded to the objectants-respondents. Likewise, it could be argued, if Reppert was disabled for the purpose of CPLR 321 (c), an automatic stay of proceedings was not triggered because of Sills Cummis's status as a second attorney of record. The November 14, 2017 order stated, in part: {**182 AD3d at 38}D. The Order Dated December 21, 2017. "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]). 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]). Kelly averred that he was told, inter alia, that the motions had not yet been decided.[FN3]. Christina petitioned pursuant to SCPA 1809 to determine the validity of her claim against 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 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. three witnesses. To the contrary, the record contains uncontradicted assertions by Kelly that he continued to ask the court for a decision on RK's motion for leave to withdraw from the accounting proceeding until May 23, 2016, when he finally learned of the existence of the March 14, 2016 order. The Surrogate's Court issued an order dated December 12, 2016, which denied, as "moot," Marianne's motion to adjourn {**182 AD3d at 34}the trial. Leventhal, Cohen and Hinds-Radix, JJ., concur. 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. 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. 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. The March 14, 2016 order required the movant, RK, to serve the order upon Marianne and all interested parties within 10 days. Decided January 10, 2020. In 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 the estate, Marianne Nestor Cassini appeals, and Peggy Nestor separately appeals, from an order of the Surrogate's Court, Nassau County (Edward W. McCarty III, S.), dated November 5, 2015. 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. Christina subsequently commenced a 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. 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. Here, Marianne was given such notice by the Surrogate's Court. 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. SCHEINKMAN, P.J., LEVENTHAL, COHEN and HINDS-RADIX, JJ., concur. [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. Further, in making this finding in its orders, the court put the objectants on notice that Reppert was unable to continue his representation of Marianne and was thus disabled, leading to the applicability of CPLR 321 (c). In his letter, Kelly contended, in essence, that the 30-day stay provided in the March 14, 2016 order had elapsed before he had even known about the order and requested that the court direct that a 30-day stay commence as of May 23, 2016, the day he received the order. As a consequence, a stay went into effect with respect to the accounting proceeding on March 3, 2016. 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. Additionally, RK is a law firm which had at least two attorneys affiliated with it, Reppert and Kelly. 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 The finding by the court on the motions for leave to withdraw that Reppert's condition precluded his continued participation in the matter, coupled with the facts that Reppert's health condition was a cause over which Marianne had no control and was not due to any fault on her part, established the existence of a disability for the purpose of CPLR 321 (c) (see Hendry v Hilton, 283 App Div at 171). 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 However, absent special circumstances, there may be only one attorney of record for a party in a single action (see Stinnett v Sears Roebuck & Co., 201 AD2d 362, 364 [1994]; Matter of Kitsch Riker Oil Co., 23 AD2d 502 [1965]; but see Itar-Tass Russian News Agency v Russian Kurier, Inc., 140 F3d 442, 452 [2d Cir 1998] [recognizing second attorney of record for the purpose of charging lien]). v Gervais, 168 AD3d 692, 693 [2019]). At the conference, it was announced for the first time, to McKay's knowledge, that a trial in the accounting proceeding was being scheduled to take place on July 25 to 29. Additionally, in Harper's description, "Marianne engaged in a pattern of obstruction the likes of which is rarely seen in litigation." We must now apply our legal conclusions to the resolution of the particular appeals before us. 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. Here, we consider whether Marianne, who did appear pro se, did so voluntarily for a period of time before raising the CPLR 321 (c) issue. In 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 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.). [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." On 07/27/2020 Marianne Nestor Cassini filed a Property - Other Real Property lawsuit against Brian Curran. 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. Div. [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. 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. 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. 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.' Citations Copy Citations. The Public Administrator joined in that cross motion. While the objectants' brief discusses the March 14, 2016 order, the objectants do not respond to Marianne's contention that the March 14, 2016 order was not released to the parties until May 23, 2016. Marianne Nestor Cassini claims the county, Surrogate Court Judge Margaret Reilly, Nassau Public Administrator Brian Curran, the Nassau Sheriff and numerous Since both before and after the interposition of the June 28, 2016 motion, Marianne clearly sought the services of counsel, we cannot say the June 28 motion reflected her volitional determination to represent herself as of that date. 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. 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. After Marianne resigned as executor of the decedent's estate, Christina moved, inter alia, for summary judgment sustaining certain objections to Marianne's account of the decedent's estate. The proceedings in the Surrogate's Court, Nassau County, had gone on for many years. 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. In an order dated June 9, 2016, the Surrogate's Court memorialized the conference held the day before. It is undisputed that no party sought leave of the Surrogate's Court to take further proceeding against Marianne and that no formal notice to appoint another attorney was served on her. 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. On May 23, 2016, Kelly again called the court. 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." As corrected through Wednesday, May 20, 2020. of the estate. In this case, Marianne had two distinct attorneys of record. 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. Citing Cases. Telmark is instructive in several respects. WebAPPEAL by the petitioner, Marianne Nestor Cassini, the former executor of the estate of Oleg Cassini, in a probate proceeding in which she petitioned for judicial settlement of Marianne requested, and received, the opportunity to submit opposition to the objectants' motion to preclude her from offering evidence at trial, among other motions, the return date for which was adjourned to June 29, 2016.
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