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The court dismissed some objections, held some objections in abeyance, and sustained some objections. First, in an order dated August 3, 2015, the Surrogate's Court authorized and directed the Public Administrator to run the day-to-day business operations of OCI and CPL and all their respective assets and properties. Div. On May 23, 2016, Kelly again called the court. [FN1], The objectants did not oppose the motions by RK and Sills Cummis for leave to withdraw. 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). They did not seek relief on an expedited basis by applying for an order to show cause. 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. Marianne Nestor Cassini claims the county, Surrogate Court Judge Margaret Reilly, Nassau Public Administrator Brian Curran, the Nassau Sheriff and numerous There was further discussion, wherein Marianne repeatedly expressed her desire to have an attorney, before there was a recess so that exhibits could be marked. Soon after the parties gave their appearances, Marianne stated: The Surrogate's Court stated that Marianne's application was denied. Contrary to Marianne's contention, Daria's claim is not barred by California Code of Civil Procedure 366.3. 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. Following Christina's death in 2015, attorney John J. Barnosky and Alexandre Cassini Belmont (hereinafter. IN RE: Oleg CASSINI (2020) | FindLaw 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. Harper asserted that "Marianne decided to remain at the June 8, 2016 conference and to represent herself." 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. 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]). Oleg Cassini Cassini Christina subsequently commenced a 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). 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. You can explore additional available newsletters here. 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." The court ordered that a warrant of arrest and commitment would issue directing the Nassau County Sheriff to arrest Marianne and take her into custody, and to bring her before the court to be committed to jail until she complied with the October 19, 2016 order. 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). Mtge. The Public Administrator also opposed Marianne's motion to vacate and did so for the same reasons set forth in the objectants' opposition. 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. Kelly also acknowledged receiving the separate orders granting Sills Cummis's motions for leave to withdraw. The service of a formal written notice to appoint from and after June 8, 2016, would have been an idle formality since Marianne knew, and was specifically advised by the court, that, if she wanted to have counsel, she would have to have one by the July 25, 2016 trial date. Get free summaries of new New York Appellate Division, Second Department opinions delivered to your inbox! The adverse parties themselves failed to serve the orders and also to serve the petitioner with a notice to appoint new counsel. However, despite knowing that Marianne's counsel was seeking to be relieved and seeking to have a stay imposed pending service of a notice to appoint successor{**182 AD3d at 21} counsel, the objectants cross-moved to appoint a receiver. [FN4] We cannot assume that the Surrogate's Court was unaware of its orders. The defendant then sent a letter to the plaintiff's attorneys in which she acknowledged that her counsel had been suspended and directed that the plaintiff "send any papers directly to [her] until notified to the contrary" (Telmark, Inc. v Mills, 199 AD2d at 580 [internal quotation marks omitted]). Either way, the stay attaches, but subject to the court's authority to vary it in appropriate cases. [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. According to Kelly, when after more than one month had passed and he had not received either a response from Keller or a decision on the motions, he called the court on March 1, 2016, and spoke with both Keller and a secretary, Lori Muscarella. The order to show cause did not bear Surrogate Reilly's signature above the signature block. 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. By order dated the following day, March 3, 2016, the Surrogate's Court granted Sills Cummis's withdrawal motion in the accounting proceeding. 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. v Gervais, 168 AD3d 692, 693 [2019]). at 1311). Contrary to Marianne's contention, she cannot take a position contrary to that taken in the estate tax return that she signed (see Mahoney-Buntzman v Buntzman, 12 NY3d 415, 422; Man Choi Chiu v Chiu, 125 AD3d 824, 826; Czernicki v Lawniczak, 74 AD3d 1121, 1125; Acme Am. Likewise, a stay may be refused where the removal of counsel was the product of the client's own wrongful act (see RDLF Fin. Second, CPLR 321 (b) (2) permits the attorney of record for a party to be changed by order of the court. As will be discussed further infra, where an attorney seeks leave to withdraw under CPLR 321 (b) (2), the court may stay proceedings pending the determination of the motion and after the determination. 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. Marianne's letter also referenced a motion having been made by the objectants that was returnable on June 8, 2016. "It was at that time that Mr. McKay immediately and promptly withdrew . It must be recognized that Marianne, by her own statements, knew, as of April 2016, that she would have to find new counsel,{**182 AD3d at 52} though there is nothing in the record that indicates that she knew, or was informed, that there was any deadline or urgency to that search. Seddio & Associates, P.C., Brooklyn, NY (Frank R. Seddio and Mischel & Horn, P.C. We consider the context of this matter as well in reaching our conclusion. In or around December 2015, Marianne's attorneys moved for leave to withdraw from representing her. 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. 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. 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. Kaplan, in support of the motion by Sills Cummis for leave to withdraw, asserted, in an affirmation submitted in the accounting proceeding, that his role had been to assist Reppert and, with Reppert's health precluding him from continuing to represent Marianne, Kaplan's role was "also ending." The amended order dated November 13, 2017, denied Marianne's motion to vacate and declare void all decisions, orders, and judgments entered after March 14, 2016, as violative of the CPLR 321 (c) stay. 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. 182 AD3d 1 [2020]). The PSA was incorporated verbatim, in its entirety, into an interlocutory judgment of divorce (see id.). This site is protected by reCAPTCHA and the Google, New York Appellate Division, Second Department, New York Appellate Division, Second Department Decisions. 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. Marianne served as executor of the decedent's estate for several years (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. Nor is there any evidence as to whether and when Reppert advised Marianne of his health condition, apart from his disclosures to the court. 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. By order dated July 1, 2016, the Surrogate's Court, in effect, granted the objectants' cross motion to appoint a receiver, and appointed Rosalia Baiamonte of Gassman, Baiamonte & Betts, P.C., as receiver. We dismiss Marianne's appeal from the order dated December 21, 2017, inter alia, directing that a warrant of arrest and commitment issue, because no appeal lies as of right from an order that does not decide a motion made on notice (see CPLR 5701 [a] [2]; LaSalle Bank N.A. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. Harper asserted that, after the March 2nd appearance, neither Marianne nor anyone on her behalf requested time to respond to the cross motion. According to McKay, he was told that unless he was appearing for Marianne for all purposes, he would not be permitted to participate in the conference, "thus requiring [McKay] to leave the conference.

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