[1] We see no reason why, in a circumstance where an attorney of record has become incapacitated, CPLR 321 (c) would apply to the exclusion of the other pathways provided in CPLR 321 for replacing the attorney of record. The assets included, among others, Oleg Cassini, Inc. (hereinafter OCI), and Cassini Parfums, Ltd. (hereinafter CPL). 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. MATTER OF CASSINI | 180 A.D.3d 773 (2020) 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 court dismissed some objections, held some objections in abeyance, and sustained some objections. The trial of the matter was scheduled to commence on August 17, 2015. ", 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. Marianne was given until June 22, 2016, to interpose opposition to the objectants' motion to preclude, with the motion to be submitted on June 29, 2016. 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. 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. 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. Under this provision, where an attorney becomes functionally disabled from representing the client, a stay of all proceedings automatically attaches, with that stay remaining in effect until a notice to appoint a replacement attorney is served. Reppert had represented the decedent for more than 15 years and represented OCI and Marianne for more than 20 years. Marianne Nestor | New York Post 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. The notice of motion lists the motion as being addressed to Kelly of RK, to the attorney for the Public Administrator, and to Peggy. CASSINI 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. Nor is there any evidence as to whether and when Reppert advised Marianne of his health condition, apart from his disclosures to the court. This opinion is uncorrected and subject to revision before publication in the Official Reports. We held in Nestor v Putney Twombly Hall & Hirson, LLP (153 AD3d 840) that California Code of Civil Procedure 366.3 is a procedural statute of limitations, and not a statute of repose, and thus, is inapplicable to this Surrogate's Court proceeding in New York (see Nestor v Putney Twombly Hall & Hirson, LLP, 153 AD3d at 842-843). No order of severance or other formal documentation of this court action was issued. 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." 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]). We consider the context of this matter as well in reaching our conclusion. 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. One of Oleg Cassinis daughters, Christina, challenged Mariannes control of the estate in court, sparking a still unresolved legal fight that saw the widow stripped of her position as administrator. Marianne and Oleg are seen together in 2000. Both of Oleg Cassinis daughters died without a penny as the estate case has wound its way through court. Marianne subsequently commenced an action to recover damages for legal malpractice in the Supreme Court based, inter alia, on the failure of the estate's attorneys to raise in the Surrogate's Court proceeding the defense that Christina's claim was barred by California Code of Civil Procedure 366.3. 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. Indeed, CPLR 321 (c) provides that the "removal" of the attorney of record brings about a stay, without regard to whether the removal was with or without the client's consent. 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 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. Generally, "a person is aggrieved when he or she asks for relief but that relief is denied in whole or in part. of County Attorney, 61 NY2d 739, 742 [1984] [internal quotation marks omitted]; see Wells Fargo Bank Minn., N.A. Published by New York State Law Reporting Bureau pursuant to Judiciary Law 431. Keller offered to, and did, send a copy of the order to Kelly by facsimile. 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. Harper also stated that, after the April court date, the cross motion was submitted for decision. at 842). 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 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. 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. Marianne Cassini spent six months in a Nassau County jail last year after failing to comply with court orders. 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. According to the receiver, By order dated July 14, 2016, the Surrogate's Court granted the objectants' motion pursuant to CPLR 3126, {**182 AD3d at 32}By order to show cause dated July 21, 2016, Marianne attempted to move to "[p]ostpon[e] the [a]ccounting [proceeding] Trial presently scheduled for July 25, 2016 to a future date i) following the completion of testing comparing the DNA of [the decedent] and Christina; ii) following the completion of a homicide investigation into the death of Daria"; to "[p]ostpon[e] the [a]ccounting [proceeding] Trial until Marianne . Supreme Court of the State of New York Appellate You already receive all suggested Justia Opinion Summary Newsletters. 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. In this regard, we note that the previous Surrogate had granted a lengthy delay in the trial partly due to Reppert's representation that he was required to undergo surgery. In this Court, Marianne unsuccessfully sought to stay the accounting trial (2016 NY Slip Op 81906[U] [2016]). Oleg Cassini (hereinafter the decedent), the internationally renowned fashion designer, died in March 2006 (see Matter of Cassini, 120 AD3d 799, 799 [2014]). The objectants did not oppose the withdrawal motions. While Marianne's right to counsel, and her rights under CPLR 321 (c), should be protected, so too should the objectants' rights to prevent dissipation or looting of the estate and its assets. 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. SCHEINKMAN, P.J., LEVENTHAL, COHEN and HINDS-RADIX, JJ., concur. 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). WebMatter of Cassini 2020 NY Slip Op 01054 Decided on February 13, 2020 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to 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." Additionally, in Harper's description, "Marianne engaged in a pattern of obstruction the likes of which is rarely seen in litigation." In an order dated November 5, 2015, the Surrogate's Court, inter alia, granted that branch of the motion which was for summary judgment sustaining certain objections to Marianne's account, and denied that branch of Marianne's cross motion which was for summary judgment dismissing objection 34. 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. Decided January 10, 2020. 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." 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). For the reasons previously expressed, we reverse this amended order and grant Marianne's motion to the extent of vacating all decisions, orders, and judgments entered in all proceedings herein between March 14, 2016, and July 25, 2016, and otherwise deny such motion. "It was at that time that Mr. McKay immediately and promptly withdrew . In a probate proceeding in which Marianne Nestor Cassini, the former executor of the estate of Oleg Cassini, petitioned for judicial settlement of her Appellate Division, Second Department 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 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). Cassini Marianne voluntarily made a pro se motion on June 28, 2016, seeking to amend the order dated November 5, 2015, sustaining certain objections to Marianne's account and to vacate certain transcripts of judgments. 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]). In this case, Marianne had two distinct attorneys of record. [FN2] But, according to Harper, Marianne appeared and participated in a conference at which Harper, attorneys for other parties to the proceeding, Shifrin, and Surrogate Reilly's then law clerk, Debra Keller, were present.