Marianne did not contend in her motion that she was compelled to make it pro se. 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]). v Coletta, 153 AD3d 757, 758 [2017]; HSBC Bank USA v Josephs-Byrd, 148 AD3d at 790). 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. {**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. We have considered whether her interposition of the motion constitutes a voluntary election to proceed pro se as of that date. 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). On June 8, 2016, Marianne appeared in the Surrogate's Court with attorney Robert McKay. (15 NY3d 384 [2010]). 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." We must now apply our legal conclusions to the resolution of the particular appeals before us. Marianne and her sister Peggy Nestor separately appeal from the order dated November 5, 2015. One of those motions was to adjourn the trial. The record before us contains an order dated March 14, 2016, of the Surrogate's Court, in which the court granted RK's withdrawal{**182 AD3d at 26} motion in the accounting proceeding. Thus, since she asked for relief but that relief was denied, Marianne is aggrieved by the March 6, 2017 order from which she appeals. 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." Marianne stated that Keller did not provide her with any information concerning the status of the motion for leave to withdraw or when the cross motion would be rescheduled. 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.). In this case, Marianne had two distinct attorneys of record. Oleg Cassini's widow files $350M lawsuit over long estate battle April 2, 2022 | 10:01am. On 02/16/2010 MARIANNE NESTOR CASSINI filed a Property - Other Real Property lawsuit against CHRISTINA TIERNEY CASSINI. 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. 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. 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.). The circumstances present here could have been readily avoided had the objectants withheld their motion to appoint a receiver until after a determination of the motions by Marianne's counsel for leave to withdraw and until after they had served a notice to appoint counsel upon Marianne. 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. [FN1], The objectants did not oppose the motions by RK and Sills Cummis for leave to withdraw. By order dated October 19, 2016, the Surrogate's Court, inter alia, directed Marianne to perform certain tasks and deliver certain information and documents to the receiver. "It was at that time that Mr. McKay immediately and promptly withdrew . According to Harper, the April 6, 2016 "conference" was in connection with the cross motion in the accounting proceeding to appoint a receiver. Harper asserted that, after the March 2nd appearance, neither Marianne nor anyone on her behalf requested time to respond to the cross motion. The assets included, among others, Oleg Cassini, Inc. (hereinafter OCI), and Cassini Parfums, Ltd. (hereinafter CPL). The statute does not make any one of these three pathways exclusive, though, as a practical matter, where an attorney has died or has become so incapacitated to be unable to execute an instrument, that attorney would not be able to effectively execute a stipulation of substitution or an affirmation in support of a motion for leave to be relieved. In a decision and order dated August 23, 2017, this Court affirmed the grant of a motion pursuant to CPLR 3211(a)(7) to dismiss portions of the legal malpractice complaint (see Nestor v Putney Twombly Hall & Hirson, LLP, 153 AD3d 840). The March 14, 2016 order required the movant, RK, to serve the order upon Marianne and all interested parties within 10 days. 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. [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. In her affidavit submitted in support of her motion, Marianne argued that the proceeding was stayed pursuant to CPLR 321 (c) when Reppert was determined to be unable, due to health reasons, to continue representing her. 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 Appellate Division of the Supreme Court of New York, Second Department. 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}. This contention is unpersuasive. 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. In McGregor v McGregor (212 AD2d at 956), the attorney of record was disbarred. They further argued that RK employed at least one attorney besides Reppert, namely, Kelly, who was quite familiar with the proceeding. 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. The Pathways for Replacing an Attorney of Record. ORDERED that one bill of costs is awarded to the objectants-respondents. 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. Second, CPLR 321 (b) (2) permits the attorney of record for a party to be changed by order of the court. Marianne did not argue that the court was proceeding to trial in violation of the statutory stay provided for in CPLR 321 (c). She averred that it took her at {**182 AD3d at 28}least two weeks to secure the voluminous file from her attorneys. at 1312). 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. The order to show cause did not bear Surrogate Reilly's signature above the signature block. The court dismissed some objections, held some objections in abeyance, and sustained some objections. The objectants neither demanded such proof nor opposed the withdrawal motion. Nothing precludes the court from serving the notice to appoint. In any event, the Court of Appeals has said that "[t]he 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). at 1312). Kelly, in a later affirmation, averred that on or about March 14, 2016, RK received copies of the orders dated February 16, 2016. "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. The June 9, 2016 order also confirmed that the cross motion to appoint a receiver had been submitted to the Surrogate's{**182 AD3d at 30} Court without opposition back in April 2016. 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. We also hold, on a related appeal decided herewith, Matter of Cassini (182 AD3d The record includes papers in connection with motions for leave to withdraw made separately by RK and by Sills Cummis. 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." Marianne also argues that the contempt order was improper, as the October 19, 2016 order she was found to have violated is not a lawful order, as such order was entered during the period when the proceeding was automatically stayed by operation of law. 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. 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. 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). Again, we disagree. We, however, conclude that, as of June 28, 2016, Marianne had received informal but nevertheless effective advance notice of at least 30 days of the need to appoint a new attorney at the June 8, 2016, conference. 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." Marianne cross-moved, among other things, for summary judgment dismissing objection 34 to the account of the estate. [FN10] We thus treat July 25, 2016, as the terminus of the CPLR 321 (c) stay. 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. Marianne Nestor Cassini claims the county, Surrogate Court Judge Margaret Reilly, Nassau Public Administrator Brian Curran, the Nassau Sheriff and numerous Kelly also acknowledged receiving the separate orders granting Sills Cummis's motions for leave to withdraw. Marianne Cassini spent six months in a Nassau County jail last year after failing to comply with court orders. 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. 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. According to Kelly, Shifrin was unaware of the status of the motions and suggested that Kelly write to Keller to inquire about the status. 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. of County Attorney, 61 NY2d 739, 742 [1984] [internal quotation marks omitted]; see Wells Fargo Bank Minn., N.A.