182 A.D.3d 13
N.Y. App. Div.2020Background
- Decedent Oleg Cassini died in 2006; his wife Marianne Cassini (petitioner) served as executor and later faced objections from decedent's daughters' estates over estate assets (including OCI and CPL).
- Marianne was represented primarily by attorney J. Vincent Reppert (RK); Reppert reported serious health problems and RK and co-counsel moved to withdraw in late 2015/early 2016.
- The Surrogate's Court granted withdrawals and issued 30‑day stays in February–March 2016, finding Reppert unable to continue due to health, but the orders and required service/notice were not reliably served on Marianne.
- The objectants moved to appoint a receiver; the court set a July 25, 2016 trial and, after Marianne appeared pro se and without counsel (or after counsel declined to enter a general appearance), proceeded, appointed a receiver (July 1, 2016), and later found Marianne in contempt for noncompliance.
- On appeal, the Appellate Division held CPLR 321(c) applied when the court found Reppert disabled, vacated all judicial determinations entered between March 14, 2016 and July 25, 2016 (including the July 1 receiver order), remitted the receiver motion for fresh determination, and kept the receiver as temporary pending that redetermination.
Issues
| Issue | Plaintiff's Argument (Cassini) | Defendant's Argument (Objectants/Public Admin) | Held |
|---|---|---|---|
| Whether CPLR 321(c) automatic stay applied when counsel withdrew under CPLR 321(b)(2) due to health | Reppert's health rendered him disabled; the court's finding triggered CPLR 321(c) automatic stay protecting Marianne | CPLR 321(c) doesn't apply because withdrawals were under CPLR 321(b)(2); no force majeure proof or medical documentation; other firm counsel available | Court: CPLR 321(c) applied where the court found Reppert unable to continue; the statutory stay attached despite withdrawal under 321(b)(2) because the disability was a force majeure event |
| When the 30‑day stay ends / what constitutes the required notice to appoint new counsel | The stay continued until 30 days after a formal notice to appoint counsel (which was never served), so later proceedings were void | Marianne voluntarily proceeded pro se and had constructive notice; informal acts waived the stay | Court: June 8, 2016 court conference effectively put Marianne on clear 30+ days' notice to retain counsel; treated July 25, 2016 as terminus of the stay and vacated intervening rulings back to March 14, 2016 |
| Validity of receiver appointment and default procedures taken during the stay | Appointment of receiver (July 1, 2016) and related orders violated CPLR 321(c) and must be vacated | Objectants had meritorious showing of immediate harm and adequate opportunity to oppose; Marianne defaulted | Court: Vacated the July 1, 2016 order as entered in violation of the stay; remanded for a new determination on the receiver motion but left the receiver in place as temporary pending redetermination |
| Properness and appealability of contempt and arrest‑warrant orders based on post‑stay orders | Contempt improper because base orders were void as issued during the stay | Contempt valid because Marianne defaulted and failed to comply with court orders; orders enforceable | Court: Appeals from Nov. 14 and Dec. 21, 2017 orders dismissed on procedural grounds (entered on Marianne's default / not appealable as of right); contempt appeal dismissed for default |
Key Cases Cited
- Moray v. Koven & Krause, Esqs., 15 N.Y.3d 384 (N.Y. 2010) (CPLR 321(c) creates an automatic stay when an attorney is disabled; stay ends 30 days after service of notice to appoint counsel unless court permits further proceedings)
- Telmark, Inc. v. Mills, 199 A.D.2d 579 (3d Dep't 1993) (client who received notice of counsel's suspension and elected to proceed pro se may be treated as having waived protection of CPLR 321(c) on those facts)
- McGregor v. McGregor, 212 A.D.2d 955 (3d Dep't 1995) (failure to comply with CPLR 321(c) may require vacatur of orders entered during the stay)
- Galletta v. Siu‑Mei Yip, 271 A.D.2d 486 (2d Dep't 2000) (order/judgment entered contrary to CPLR 321(c) can be vacated)
- Hendry v. Hilton, 283 App. Div. 168 (2d Dep't 1953) (CPLR 321(c) protection is aimed at litigants who, through no fault of their own, lose their counsel and need reasonable time to obtain replacement)