Cassini v. Barnosky (In re Cassini)

• Decision Date: 13 February 2020
• Docket Number: 2018–02101,2018–00758,File No. 343100G,2018–00747,2018–02102
• Citation: 182 A.D.3d 13,120 N.Y.S.3d 103
• Parties: In the MATTER OF Oleg CASSINI, deceased. Marianne Nestor Cassini, Petitioner-Appellant; v. John J. Barnosky, etc., et al., Objectants-Respondents; Jeffrey DeLuca, et al., Nonparty-Respondents.
• Court: New York Supreme Court — Appellate Division

182 A.D.3d 13

120 N.Y.S.3d 103

In the MATTER OF Oleg CASSINI, deceased.

Marianne Nestor Cassini, Petitioner-Appellant;

v.John J. Barnosky, etc., et al., Objectants-Respondents;

Jeffrey DeLuca, et al., Nonparty-Respondents.

2018–00747

2018–00758

2018–02101

2018–02102

File No. 343100G

Supreme Court, Appellate Division, Second Department, New York.

Argued - September 25, 2019

February 13, 2020

Seddio & Associates, P.C., Brooklyn, N.Y. (Frank R. Seddio and Mischel & Horn, P.C. [Scott T. Horn ], of counsel), for petitioner-appellant.

Farrell Fritz, P.C., Uniondale, N.Y. (John J. Barnosky pro se and Robert M. Harper of counsel), for objectants-respondents.

ALAN D. SCHEINKMAN, P.J., JOHN M. LEVENTHAL, JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, JJ.

OPINION & ORDER

SCHEINKMAN, P.J.

I. Introduction

On these appeals, we consider the interplay between CPLR 321(b)(2), which permits the attorney of record for a party to withdraw by order of the court, with the court having the ability to stay proceedings pending substitution of new counsel, and CPLR 321(c), which automatically and effectively suspends all proceedings against a party whose attorney becomes incapacitated until 30 days after notice to appoint another attorney has been served upon that party. 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. 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. The adverse parties themselves failed to serve the orders and also to serve the petitioner with a notice to appoint new counsel. 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. This was, under the circumstances, the practical equivalent of more than 30 days' notice to the litigant to appoint new counsel. 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.

We also hold, on a related appeal decided herewith, Matter of Cassini, 182 A.D.3d 1, 118 N.Y.S.3d 702 [Appellate Division Docket No. 2017–01413], that the Surrogate's Court improvidently exercised its discretion in denying the petitioner a reasonable adjournment of the trial date and thereafter proceeding with the trial in her absence.

II. Background

Oleg Cassini (hereinafter the decedent), the internationally renowned fashion designer, died in March 2006 (see Matter of Cassini, 120 A.D.3d 799, 799, 992 N.Y.S.2d 93 ). He was survived by his wife, Marianne Nestor Cassini (hereinafter Marianne), and two daughters from his marriage to the actress Gene Tierney, Daria Cassini (hereinafter Daria) and Christina Cassini (hereinafter Christina) (see id. ). His last will and testament was admitted to probate in the Surrogate's Court, Nassau County (see Matter of Cassini, 95 A.D.3d 1311, 1312, 945 N.Y.S.2d 414 ). Marianne served as executor of the decedent's estate for several years (see id. at 1312, 945 N.Y.S.2d 414 ).

Christina petitioned pursuant to SCPA 1809 to determine the validity of her claim against the estate (see Matter of Cassini , 95 A.D.3d at 1312, 945 N.Y.S.2d 414 ). Christina's claim was based on a "Property Settlement Agreement" (hereinafter the PSA) which was entered into by the decedent and Tierney. The PSA, by its terms, was to be construed and interpreted under and in accordance with California law (see id. at 1311, 945 N.Y.S.2d 414 ). 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. ). The PSA was incorporated verbatim, in its entirety, into an interlocutory judgment of divorce (see id. ). The interlocutory judgment of divorce was incorporated by reference into the final judgment of divorce that was entered in 1953 (see id. ). The decedent's will did not provide for the testamentary disposition specified in the PSA, so Christina asserted a claim against the decedent's estate and, essentially, sought to have a constructive trust imposed on certain estate assets (see id. at 1312, 945 N.Y.S.2d 414 ).

On a prior appeal, this Court held, in part, that "[a]s the Surrogate's Court essentially and correctly determined, [Christina] established, prima facie, that the decedent's obligation [under the PSA], which merged with the final judgment of divorce, was enforceable as part of that judgment, and that the final judgment was never modified, vacated, or reversed" ( id. [citations omitted] ). "Furthermore, as the Surrogate's Court also essentially and correctly determined, [Marianne] failed to raise a triable issue of fact as to the enforceability of that obligation, which [Christina] first sought to enforce after the decedent's death, via the imposition of a constructive trust upon certain assets of the decedent's estate" ( id. ).

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. 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 [Cal Ct App] ). 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 gross assets of more than $56 million (hereinafter the Accounting Proceeding). The assets included, among others, Oleg Cassini, Inc. (hereinafter OCI), and Cassini Parfums, Ltd. (hereinafter CPL). Daria died in 2010, and litigation followed involving Marianne and Christina regarding a certain testamentary trust established for Daria's benefit (see Matter of Cassini, 120 A.D.3d 799, 992 N.Y.S.2d 93 ). Eventually, Christina, individually and as administrator of Daria's estate, filed objections to Marianne's intermediate account.

In June 2014, after Christina petitioned for Marianne's removal as executor and the Public Administrator of Nassau County (hereinafter the Public Administrator) was appointed as temporary administrator of the estate, the Public Administrator was appointed administrator c.t.a., by agreement of the parties. Following Christina's death in 2015, attorney John J. Barnosky and Alexandre Cassini Belmont (hereinafter together the objectants) became the executors of her estate and successor administrators of Daria's estate.

In 2015, the Surrogate's Court, Nassau County (Edward W. McCarty III, S.), issued two orders which are the subject of related appeals decided herewith ( Matter of Cassini, 180 A.D.3d 773, 118 N.Y.S.3d 661 [Appellate Division Docket Nos. 2015–09488, 2015–11775] ).

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. The August 2015 order also vacated a prior decree, in a related matter, to the extent that such decree had appointed Peggy Nestor (hereinafter Peggy)—Marianne's sister—to run the day-to-day business operations of OCI and CPL. The August 2015 order also suspended any authority of Marianne and Peggy to perform any acts as managers, directors, or officers of OCI and CPL.

Second, in an order dated November 5, 2015, the Surrogate's Court, upon a decision dated October 9, 2015, granted the objectants' motion for summary judgment sustaining certain specified objections to Marianne's account. 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. of the estate. The November 2015 order also determined that the claim asserted on behalf of Daria's estate against the decedent's estate was valid and timely.

III. The Withdrawal of Marianne's Counsel

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. (hereinafter Sills Cummis). Reppert had represented the decedent for more than 15 years and represented OCI and Marianne for more than 20 years.

The trial of the matter was scheduled to commence on August 17, 2015. 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. Reppert did not provide any details as to his medical condition or treatment, but offered to do so in camera upon the court's request. The trial did not proceed. 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. As discussed above, the litigation continued into the fall of 2015.

In or around December 2015, Marianne's attorneys moved for leave to withdraw from representing her. The...