Although not part of these appeals, the record reflects that the Surrogate's Court issued a decision after trial dated December 19, 2017. Unlike CPLR 321 (b) (1), where a substitution is with the outgoing attorney's consent, and CPLR 321 (b) (2), where an attorney may seek to be relieved, CPLR 321 (c) becomes applicable upon the occurrence of an event that is typically outside the outgoing attorney's control. This site is protected by reCAPTCHA and the Google, New York Appellate Division, Second Department, New York Appellate Division, Second Department Decisions. That action was dismissed for lack of personal jurisdiction over an indispensable party (see Cassini v Belmont, 2012 WL 3594378, 2012 Cal App Unpub LEXIS 6167 [Aug. 22, 2012, No. However, no order or other written documentation of this court action was issued. 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." 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. Following the recess, the court announced that it appeared Marianne had left. The interlocutory judgment of divorce was incorporated by reference into the final judgment of divorce that was entered in 1953 (see id.). The objectants opposed Marianne's motion to vacate. They urged that for CPLR 321 (c) to apply based on a party's attorney's mental or physical incompetency, the attorney's withdrawal application had to be supported by medical proof to substantiate the attorney's condition. In particular, Marianne filed the petition for judicial settlement of her intermediate account in December 2010 or January 2011. "It was at that time that Mr. McKay immediately and promptly withdrew . 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). 182 AD3d 1 [2020]). 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. The PSA, by its terms, was to be construed and interpreted under and in accordance with California law (see id. His last will and testament was admitted to probate in the Surrogate's Court, Nassau County{**182 AD3d at 17} (see Matter of Cassini, 95 AD3d 1311, 1312 [2012]). 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 the letter, Harper set forth his narrative of the proceeding. 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. By order dated the following day, March 3, 2016, the Surrogate's Court granted Sills Cummis's withdrawal motion in the accounting proceeding. 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 Leventhal, Cohen and Hinds-Radix, JJ., concur. Christina, individually and as administrator of Daria's estate, filed objections to the account. 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. In addition to the record lacking any evidence that this order was ever officially entered upon the records of the court, the record does not contain any evidence that the order was ever served by anyone upon anyone. She was also given a period well in excess of 30 days in which to retain counsel. By letter dated July 8, 2015, Reppert informed the Surrogate's Court and the other parties that he had to undergo surgery and it would be physically impossible for him to prepare for, and proceed with, the trial as scheduled. 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. In denying payment of executor's commissions to Marianne, the court stated: This Court denied Marianne's motion, among other things, to stay enforcement of the decision dated December 19, 2017, pending hearing and determination of the appeals. 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. 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. [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. at 1312). According to Harper, during that conference, Shifrin asked Marianne whether she had undertaken any efforts to retain new counsel. [FN10] We thus treat July 25, 2016, as the terminus of the CPLR 321 (c) stay. 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. three witnesses. Second, CPLR 321 (b) (2) permits the attorney of record for a party to be changed by order of the court. Developments Subsequent to the Orders Appealed From. On May 23, 2016, Kelly again called the court. New legal papers were recently filed by Marianne Nestors attorneys claiming that Tina knew that Oleg Cassini wasnt her father even before her mother died. 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). 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. {**182 AD3d at 41}. Marianne did not argue that the court was proceeding to trial in violation of the statutory stay provided for in CPLR 321 (c). 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. Thus, since she asked for relief but that relief was denied, Marianne is aggrieved by the March 6, 2017 order from which she appeals. There is no merit to the objectants' contention that because Marianne no longer had authority to administer OCI or CPL, she was not aggrieved by the appointment of a receiver for those entities. Case Summary. Pursuant to a choice-of-law provision, the PSA was to be construed and interpreted in accordance with California law. 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). {**182 AD3d at 37}. This was, under the circumstances, the practical equivalent of more than 30 days' notice to the litigant to appoint new counsel. 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. On June 29, 2016, Marianne again appeared in court with McKay. 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 defendant then proceeded pro se, which she had the right to do (see id. The widow of fashion icon Oleg Cassini was released Friday after spending six months in jail for contempt of court. She claimed that she was never informed of a date when her opposition to the cross motion would be due, or when it was to be rescheduled. 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. 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. Again, Marianne did not raise any issue regarding a stay under CPLR 321 (c). 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). 773 [2020]; Matter of Cassini, 180 AD3d 775 [2020]). 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. On April 15, 2016, having received no further word from the court, Kelly wrote a letter to Surrogate Reilly, with an emailed copy to Keller and to other counsel, "to respectfully inquire as to the status of our firm's motion to withdraw as counsel for Petitioner in the above-referenced accounting proceeding.". 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.
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