One of Oleg Cassinis daughters, Christina, challenged Mariannes control of the estate in court, sparking a still unresolved legal fight that saw the widow stripped of her position as administrator. Marianne and Oleg are seen together in 2000. Both of Oleg Cassinis daughters died without a penny as the estate case has wound its way through court. Kelly averred that he was told, inter alia, that the motions had not yet been decided.[FN3]. He spoke directly with Keller. MARIANNE NESTOR CASSINI Matter of Cassini (2020 NY Slip Op 01057) Soon after the parties gave their appearances, Marianne stated: The Surrogate's Court stated that Marianne's application was denied. The client always has the option of discharging the attorney, in which event the discharge is immediate (see Farage v Ehrenberg, 124 AD3d 159, 165 [2014]). While Marianne's letter did not describe the nature of that motion, the record before us includes a notice of motion dated May 13, 2016, in which the objectants sought to preclude Marianne from offering any evidence at the trial of the accounting proceeding. ORDERED that the order is affirmed insofar as appealed from by Marianne Nestor Cassini and insofar as reviewed on the appeal by Peggy Nestor; and it is further. By order dated the following day, March 3, 2016, the Surrogate's Court granted Sills Cummis's withdrawal motion in the accounting proceeding. 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. The court stated that the same relief was requested and denied at the trial, and that the trial had taken place. Marianne also argues that the contempt order was improper, as the October 19, 2016 order she was found to have violated is not a lawful order, as such order was entered during the period when the proceeding was automatically stayed by operation of law. The assets included, among others, Oleg Cassini, Inc. (hereinafter OCI), and Cassini Parfums, Ltd. (hereinafter CPL). [Scott T. Horn], of counsel), for petitioner-appellant, and Peggy Nestor, New York, NY, respondent-appellant pro se (one brief filed). 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. It appears that the motion was marked submitted on April 6, 2016, at which time a stay of the accounting proceeding was in effect, pursuant to the court's own March 14, 2016 order. Although the court retains "inherent discretionary power to relieve a party from a judgment or order for sufficient reason and in the interest of substantial justice" (Galasso, Langione & Botter, LLP v Liotti, 81 AD3d 884, 885 [2011]; see Ladd v Stevenson, 112 NY332 325, 332 [1889]; Katz v Marra, 74 AD3d 888, 890 [2010]), "[a] court's inherent power to exercise control over its judgments is not plenary, and should be resorted to only to relieve a party from{**182 AD3d at 56} judgments taken through [fraud,] mistake, inadvertence, surprise or excusable neglect" (Matter of McKenna v County of Nassau, Off. As discussed above, the litigation continued into the fall of 2015. Marianne did not contend in her motion that she was compelled to make it pro se. The controversy at issue herein might have been less confusing had Sills Cummis served strictly in an of counsel capacity to RK, with the latter firm being the sole{**182 AD3d at 42} attorney of record. Following the recess, the court announced that it appeared Marianne had left. The evidence presented included exhibits numbered up to 171 and Eventually, Christina, individually and as administrator of Daria's estate, filed objections to Marianne's intermediate account. Reppert and his firm filed three identical motions for leave to withdraw as counsel, in the accounting proceeding and in two related proceedings, one commenced by the Public Administrator against Marianne to turn over property alleged to belong to the estate (hereinafter the turnover proceeding), and the other a proceeding relating to a special needs testamentary trust established by Marianne for Daria in accordance with the decedent's will (hereinafter the SNT proceeding). The court surcharged Marianne for, among other things, refusing to comply with the court's determination that the claims of Christina and Daria were valid, making unauthorized transfers of funds from OCI and CPL, making unauthorized payments from OCI, and failing to collect receivables. 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. {**182 AD3d at 40}, VIII. Nor is there any evidence as to whether and when Reppert advised Marianne of his health condition, apart from his disclosures to the court. Although not part of these appeals, the record reflects that the Surrogate's Court issued a decision after trial dated December 19, 2017. Christina's claim was based on a "Property Settlement Agreement" (hereinafter the PSA) which was entered into by the decedent and Tierney. At the conclusion of the June 8th conference, Marianne claims she was told that there would be another conference on June 29, 2016. In this Court, Marianne unsuccessfully sought to stay the accounting trial (2016 NY Slip Op 81906[U] [2016]). Here, however, there is nothing in the record indicating that Marianne's voluntary act or wrongdoing caused Reppert's withdrawal. 773 [2020]; Matter of Cassini, 180 AD3d 775 [2020]). Telmark is instructive in several respects. They contended that CPLR 321 (c) mandated a stay only when a force majeure, like death or incompetency, prevented a party from practicing law. While Marianne's right to counsel, and her rights under CPLR 321 (c), should be protected, so too should the objectants' rights to prevent dissipation or looting of the estate and its assets. Here, Marianne was given such notice by the Surrogate's Court. Since McKay was not permitted to attend the conference as he was unwilling to enter a formal appearance, it cannot be said that Marianne's decision to participate in the conference without the benefit of counsel was wholly voluntary. "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.). Harper asserted that, after the March 2nd appearance, neither Marianne nor anyone on her behalf requested time to respond to the cross motion. [*1]In the Matter of Oleg Cassini, deceased. Kelly emailed Keller that day, with copies to Harper, among others. Marianne subsequently commenced an action to recover damages for legal malpractice in the Supreme Court based, inter alia, on the failure of the estate's attorneys to raise in the Surrogate's Court proceeding the defense that Christina's claim was barred by California Code of Civil Procedure 366.3. 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. [1] We see no reason why, in a circumstance where an attorney of record has become incapacitated, CPLR 321 (c) would apply to the exclusion of the other pathways provided in CPLR 321 for replacing the attorney of record. In Moray, this Court affirmed the Supreme Court's order granting the defendant's motion pursuant to CPLR 3012 (b) to dismiss the action for failure to timely serve a complaint, holding, inter alia, that the plaintiff's contention that the action{**182 AD3d at 44} had been stayed pursuant to CPLR 321 (c) was raised for the first time on appeal and, thus, was not properly before us (see Moray v Koven & Krause, Esqs., 62 AD3d 765 [2009], revd 15 NY3d 384 [2010]). During or around the time these probate matters were pending in the Surrogate's Court, Nassau County, Marianne also was involved in litigation she commenced in California, seeking a judicial determination regarding the respective rights and obligations under the judgment of divorce between the decedent and his former wife, Gene Tierney (see Cassini v Belmont, 2012 WL 3594378, 2012 Cal App Unpub LEXIS 6167 [Aug. 22, 2012, No. In an affirmation executed two week later, in support of Sills Cummis's motion for leave to withdraw, Kaplan asserted that his firm's role in the matter was ending "[n]ow that Mr. Reppert's health prevents him from continuing to represent Marianne before this Court." Counsel for the Public Administrator asserted, in an affirmation submitted in support of the cross motion, that, By letter dated January 6, 2016, Christopher P. Kelly of RK wrote to the Surrogate's Court. According to Harper, when the attorneys of record confirmed that the cross motion to appoint a receiver had been previously submitted for decision, Marianne did not dispute that fact, did not request the opportunity to oppose the cross motion, and did not indicate that she needed to discuss that cross motion with counsel. Even if it is assumed that this finding was not imported into the accounting proceeding until the March 14, 2016 order relieving RK made in that proceeding, and that the stay did not take effect in that proceeding until March 14, 2016, there is no significant consequence as it does not appear that any judicial determinations were rendered in the interval between February 16 and March 14, 2016. Instead, there was handwriting near the lower left corner of the second page of the order to show cause reading, "Denied without merit," and bearing the Surrogate's signature and the date "7/21/16.". We have considered whether her interposition of the motion constitutes a voluntary election to proceed pro se as of that date. She was most certainly on notice that she needed new counsel when she appeared, accompanied by McKay, at a conference before the Surrogate's Court on June 8, 2016. We held in Nestor v Putney Twombly Hall & Hirson, LLP (153 AD3d 840) that California Code of Civil Procedure 366.3 is a procedural statute of limitations, and not a statute of repose, and thus, is inapplicable to this Surrogate's Court proceeding in New York (see Nestor v Putney Twombly Hall & Hirson, LLP, 153 AD3d at 842-843).