In or around December 2015, Marianne's attorneys moved for leave to withdraw from representing her. According to the objectants, Marianne had ample opportunity to oppose their cross motion to appoint a receiver and failed to avail herself of it. 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. He spoke with Muscarella at least once and with Shifrin at least once; Muscarella and Shifrin were friendly, but unable to provide any information regarding the status of the motion. 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. The objectants did not oppose the withdrawal motions. 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]). Oleg Cassini's widow released from Nassau's jail Marianne's letter also referenced a motion having been made by the objectants that was returnable on June 8, 2016. In this case, Marianne had two distinct attorneys of record. Since the client is, by executing the stipulation of substitution, in effect, consenting to the discharge of the attorney of record and simultaneous replacement with another, there is no entitlement to an automatic stay of proceedings by reason of the change in counsel (see Shurka v Shurka, 100 AD3d 566 [2012]), although incoming counsel could always seek a stay from the court (see CPLR 2201). Marianne Nestor | New York Post The objectants argued that the Surrogate's Court granted RK's motion for leave to withdraw as Marianne's counsel pursuant to CPLR 321 (b) (2), not CPLR 321 (c), and thus the stay Marianne claimed to have arisen under CPLR 321 (c) did not apply. . three witnesses. Also unavailing is the objectants' contention that the legislative purpose underlying the enactment of CPLR 321 (c) is to protect an unknowing client whose counsel failed to inform the client of counsel's suspension or disability. Marianne served as executor of the decedent's estate for several years (see id. Thus, since she asked for relief but that relief was denied, Marianne is aggrieved by the March 6, 2017 order from which she appeals. Telmark is instructive in several respects. 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. The Surrogate's Court appropriately severed the cross motion and held it in abeyance pending the court's determination of Reppert's motion for leave to withdraw. The decedent's last will and testament did not include testamentary dispositions leaving at least one-half of his net estate to Daria and Christina. On May 23, 2016, Kelly again called the court. {**182 AD3d at 27}It is notable that proceedings took place on April 6, 2016, without Marianne's participation, in the context of the accounting proceeding. 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. He spoke directly with Keller. 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. 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. Stated differently, where an attorney of record becomes disabled from further{**182 AD3d at 43} participating in the case, the attorney may seek to be replaced by consent through a stipulation of substitution (CPLR 321 [b] [1]), or the attorney could seek to be relieved by court order (CPLR 321 [b] [2]), or the party represented by the attorney could be compelled to replace the attorney by service of a notice to appoint by the adverse party (CPLR 321 [c]). The order, insofar as appealed from, granted those branches of the objectants' motion which were for summary judgment sustaining certain objections to the account of the estate and denied that branch of the cross motion of Marianne Nestor Cassini which was for summary judgment dismissing objection 34 to the account of the estate. Of course, some further action must be taken in order for the discharge to be made known to the other parties to the action and to the court. Kelly, in a later affirmation, averred that on or about March 14, 2016, RK received copies of the orders dated February 16, 2016. Where an attorney is allowed to be relieved by court order under CPLR 321 (b) (2), it is preferable for the court to direct that the order be served by the adverse party, just as service of a notice to appoint by the adverse party or the court itself is required by CPLR 321 (c). According to Marianne, the stay continued until 30 days after the attorney for the adverse party sent the notice to appoint attorney required by CPLR 321 (c). 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. 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. According to a letter that Kelly sent to Surrogate Reilly, dated May 25, 2016, Kelly received the March 14, 2016 order only two days earlier, i.e., May 23, 2016. Under the circumstances, argued Kelly, Marianne did not have sufficient time to adequately respond to the cross motion. Decided January 10, 2020. Kelly, in an affirmation submitted in connection with a later motion, asserted that on or about January 29, 2016, Kelly{**182 AD3d at 23} called Shifrin to inquire about the status of the withdrawal motions. 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. {**182 AD3d at 19}, III. Even apart from the violation of CPLR 321 (c), there is an alternative basis for reversal. Repairs, Inc. v Uretsky, 39 AD3d 675, 676-677). The Court of Appeals did not agree: CPLR 321 (c) applies to circumstances in which an event occurs which is personal to the attorney of record which involuntarily prevents the attorney of record from continuing to represent the party, notwithstanding the attorney's willingness to do so (see Hendry v Hilton, 283 App Div at 171). Harper, in a later affirmation, claimed that the court declined to hear argument from McKay after he answered that he would not be making a general appearance for Marianne. The Florida statute, on its face, " wipe[s] out the substantive right'" by declaring nonliability upon the passage of time, while the California statute at issue here " merely suspends the remedy'" (Tanges v Heidelberg N. 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. {**182 AD3d at 47} Whether such a disability has occurred, and when it occurred, may not always be readily known and, in particular, known to the adverse party. 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. Accordingly, this Court concluded that raising that statute in the Surrogate's Court proceeding would not have resulted in a determination that Christina's claim was barred (see id. Cassini Where the stay has been violated, the remedy is to vacate the judicial determinations rendered in contravention of the statute (see Livore v Malik, 305 AD2d 641, 642 [2003]; Galletta v Siu-Mei Yip, 271 AD2d at 486; McGregor v McGregor, 212 AD2d at 956; see also Moray v Koven & Krause, Esqs., 15 NY3d at 389; Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, CPLR C321:3 ["A party against whom an order or judgment is entered in violation of CPLR 321(c) may have the order or judgment vacated"]).
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