Oleg Cassini was wildly successful as a fashion designer.  When he divorced, back in the 1950’s he agreed that his estate would (50%) go to his two daughters.  Fast forward to the 21st century.  As you might guess, the daughters were disinherited.  As you might further guess, this led to litigation.  It led to legal malpractice litigation, but only as the tail to the dog.  Matter of Cassini  2020 NY Slip Op 01056 Decided on February 13, 2020 Appellate Division, Second Department Scheinkman, P.J., J. and two other simultaneous decisions were reported just before Valentine’s day.

Well beyond the space limits of this blog, the history of the fight between second wife and two daughters of the first marriage, the Oleg Cassini estate, consisting of  clothing, perfumes and other products was worth upwards of $ 50 million.  The daughters both died during the litigation and the Nassau County Public Administrator has been prosecuting the case for many years.

At issue here was how CPLR 321 is applied when an attorney simultaneously seeks to be relieved and tells the court that he is too ill to continue.  The stays, adjournments and process are fully discussed by Presiding Judge Scheinkman.

“The decedent was survived by his wife, Marianne Nestor Cassini (hereinafter Marianne), and his two daughters from a previous marriage, Christina Cassini (hereinafter Christina) and Daria Cassini (hereinafter Daria). The decedent’s last will and testament was admitted to probate in August 2007, and, pursuant to its terms, Marianne was appointed executor of the decedent’s estate. Christina subsequently petitioned to remove Marianne as executor and, in 2014, pursuant to a stipulation entered into between the parties, Marianne resigned as executor and the Public Administrator of Nassau County (hereinafter the Public Administrator) was appointed to administer the decedent’s estate.

During the course of this litigation, Marianne was represented by J. Vincent Reppert, of the law firm of Reppert Kelly, LLC (hereinafter RK), as well as by Charles H. Kaplan, of the law firm of Sills Cummis & Gross P.C. (Sills Cummis), in three proceedings. The three proceedings consisted of: (1) a proceeding to judicially settle the intermediate account of the estate (hereinafter the Accounting Proceeding); (2) a proceeding for the turnover of certain assets allegedly belonging [*2]to the estate (hereinafter the Turnover Proceeding); and (3) a proceeding to settle the account of a supplemental needs trust established for the benefit of Daria (hereinafter the SNT Proceeding).

In July 2015, Reppert notified the Surrogate’s Court that he had a “medical condition” that required surgery and requested an adjournment of the trial in the Accounting Proceeding, which was scheduled to commence in August 2015. The court granted the request, largely, but not entirely, because of Reppert’s health condition. A subsidiary reason for the adjournment was the need for the court to determine certain motions, which were not decided until October 9, 2015.

In December 2015, RK and Sills Cummis each filed separate motions for leave to withdraw as counsel of record for Marianne in each of the three pending proceedings. In a supporting affirmation, Reppert advised the court that “Marianne specifically requested [him] to work on this action based on a pre-existing work relationship” and that “[f]or medical reasons, [he has] not been able to fully return to the practice of law full-time since July of 2015.” Reppert stated that both he and his partner, Christopher Kelly, advised Marianne that RK “would have to move to withdraw as counsel” and that RK “will provide all records in [its] possession and will attempt to assist as much as reasonably possible with any transition.” The motions, which were returnable on January 13, 2016, were unopposed.

By two orders dated February 16, 2016, the Surrogate’s Court granted RK’s motions for leave to withdraw as counsel for Marianne in the Turnover Proceeding and the SNT Proceeding, respectively, finding that Reppert was “unable to continue to represent [Marianne] due to health reasons.” According to Kelly of RK, RK did not receive copies of those orders until March 14, 2016. The court also granted Sills Cummis’s motions for leave to withdraw as counsel in all three proceedings. After several inquiries by Kelly as to the status of his firm’s motion for leave to withdraw from the Accounting Proceeding, court personnel, on May 23, 2016, transmitted to RK a copy of an order dated March 14, 2016, granting its motion for leave to withdraw as counsel for Marianne in the Accounting Proceeding. This order contained a finding by the court that Reppert was unable to continue to represent Marianne due to health reasons. It also contained a provision staying all proceedings in the Accounting Proceeding for a period of 30 days from its date.

A court conference was held on June 8, 2016, at which Marianne appeared with an attorney, Robert McKay. The proceedings on June 8, 2016, were not transcribed. However, according to an order dated June 9, 2016, issued by the Surrogate’s Court for the purpose of memorializing the conference, the court directed that the trial of the Accounting Proceeding would commence on July 25, 2016, that the trial dates could not be adjourned without court approval, and that “[t]he trial shall proceed whether the parties are represented by counsel or not.” While not mentioned in the June 9, 2016, order, it is undisputed that McKay decided against undertaking Marianne’s representation and declined to file a notice of appearance.”