Matter of Cassini (Cassini)

[*1] Matter of Cassini (Cassini) 2013 NY Slip Op 51604(U) Decided on September 26, 2013 Sur Ct, Nassau County McCarty, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 26, 2013
Sur Ct, Nassau County

In the Matter of the Account of Marianne Nestor Cassini as Executor of the Estate of OLEG CASSINI, Deceased.



343100/G



The appearance of counsel are as follows:

Daniel Pickett, Esq.

Sedgwick, LLP

225 Liberty Street, 28th Fl.

New York, NY 10281

and

J. Vincent Reppert, Esq. (for Marianne Nestor Cassini, petitioner-executor, beneficiary and residuary legatee)

Reppert Kelly, LLC

120 Mountain View Blvd.

P.O. Box 509

Basking Ridge, NJ 07920

John J. Barnosky, Esq. (for respondent)

Farrell Fritz

1320 RXR Plaza

Uniondale, NY 11556

Elizabeth P. Donlon, Esq. (for Richard Rowe, as former guardian of Daria Cassini)

99 Tulip Ave., Ste. 404

Floral Pk., NY 11001

Michelle Merola, Esq. (for Skwiersky, Alpert & Bressler, LLP)

Hodgson Russ, LLP

140 Pearl St.

Buffalo, NY 14202

Todd Belous, Esq. (for Putney, Twombly, Hall & Hirson, LLP)

Rivkin Radler, LLP

929 RXR Plaza Uniondale, NY 11556

Edward W. McCarty III, J.

This is a motion to quash subpoenas duces tecum pursuant CPLR 2304 and 3103. The movant is Marianne Nestor Cassini, the executor. The motion is opposed.

Marianne Nestor Cassini filed her account as executor. In Schedule A the executor stated that she received $56,439,198.00 in principal. Of the $56,439,198.00 received, the executor claims that she is the owner of: US Trust & Company account in the amount of $660,003.00; Cassini, Inc. valued at $43,536,435.00; and Cassini Parfums, Ltd. valued at $1,595,000.00. Included in Schedule A as other miscellaneous properties are the following: artwork, furniture, antiques and memorabilia from Jackie Kennedy and Grace Kelly, the total value of which is estimated to be $5,864,140.00 The executor notes with regard to this other miscellaneous property that it has not yet been determined whether these are assets of the estate.

The attorney for objectant Christina Cassini served subpoenas duces tecum on Swiersky, Alpert & Bressler LLP, the accountants hired by the executor, and Putney, Twombly, Hall & Hirson, the executor's former attorneys. The subpoenas are identical and request the production of documents which include: federal and estate tax returns together with drafts, attachments and comments concerning audit adjustments; Form 1040s and 1041s for the period of 2003-2010; Form 1041s filed by the executor in her fiduciary capacity; appraisals used in preparation of any Federal or State estate tax return; any documents concerning ownership of U.S. Trust & Co., Oleg Cassini, Inc. and Cassini Parfums Ltd. by Oleg Cassini or Marianne Nestor Cassini, individually, as executor or in any other capacity; any Federal or State Tax returns filed for Oleg Cassini, Inc, for the period of 1969 to the present including drafts, attachments and documents concerning audit adjustments; any Federal or State tax returns filed for Cassini Parfums, Ltd., for the period of 1990 to the present.

The movant argues that the subpoenas must be quashed as the requests are vague, overbroad and/or violate the attorney-client privilege.

The attorneys for Christina Cassini argue that the motion must be dismissed because the attorney for the movant failed to comply with 22 NYCRR 202.7 even though he filed an affirmation of good faith. The issue, according to Christina Cassini's lawyers, is whether the attorney for the movant really acted in good faith in trying to resolve the dispute.

The good faith requirement is "intended to remove from the court's work load all but the most significant and unresolvable disputes over what has been the most prolific generator of pre trial motions: discovery issues" (Eaton v Chahal, 146 Misc 2d 977, 982 [Sup Ct, Rensselaer County 1990]). The good faith requirement is not intended to generate additional litigation over what constitutes good faith. Where the filing of a good faith affirmation would be futile, some courts have waived the requirement (Baulieu v Ardlsey Assoc. L.P., 84 AD3d 666 [1st Dept 2011]; Carrasquillo v Netsloh Realty Corp., 279 AD2d 334 [1st Dept 2001]). The basis of a finding of futility is confined to the unique circumstances of each case (see, e.g. Carrasquillo v Netsloh Realty Corp., 279 AD2d 334 [1st Dept 2001]). In the instant proceeding, this court has issued seventeen decisions and there are multiple motions pending between the parties. The court has held countless conferences in an attempt to settle the various disputes. Moreover, the documents attached to the papers evidence the apparent inability of the parties to resolve any [*2]issues and the animosity between the attorneys.[FN1] Under the circumstances, the filing of a good faith affirmation in any pending or future case in the Matter of the Estate of Oleg Cassini, is waived as futile. The motion to dismiss the proceeding for not adhering to the requirements of 22 NYCRR 202.7 is therefore denied.

CPLR 3101(a) provides for the full disclosure of all evidence material and necessary to the prosecution or defense of an action. Material and necessary, in turn, has been interpreted to require disclosure of any facts bearing on the controversy which will assist in the preparation for trial by sharpening the issues and reducing delay and prolixity (Allen v Crowell-Collier Publishing Co., 21 NY2d 403, 406-407 [1968]). A party's right to discovery, however, is not unlimited (Harrison v Bayley Seton Hospital, 219 AD2d 584 [2d Dept 1995]). The request to produce documents must specify the documents sought with reasonable particularity (CPLR 3120 [2]; Degliuomini v Degliuomini, 308 AD2d 501 [2d Dept 2003]). Where the demands are overbroad, the court may limit the demand to evidence that is material and necessary (Harrison v Bayley Seton Hospital, 219 AD2d 584 [2d Dept 1995]).

In the instant proceeding, the requests enumerated (e), (i) and (j) do not specify the documents sought with reasonable particularity and are thus stricken. With regard to the request enumerated (g) where documents are requested from 1969, this request is amended to read documents requested from 1996 to present. Cassini Inc. was formed in the 1950s and various stock certificates issued in the name of Oleg Cassini. At some point either in 1969 or before, Marianne Nestor Cassini became the secretary for the corporation. In February of 1969 a stock power issued in which Marianne Nestor was named as "lawful attorney" for Oleg Cassini with regard to the shares. On or about April 11, 1996, the original stock certificates were apparently amended and typed next to Mr. Cassini's name is "and Marianne Nestor as joint tenants with rights of survivorship April 11, 1996". There is no claim that Marianne Nestor had an ownership in Cassini Inc. in 1969. The request is therefore overbroad and amended as indicated.

The last issue before the court is the issue of attorney-client privilege. The movant seeks to quash the subpoena issued to Putney, Twombly, Hall & Hirson, LLP on the grounds that some of the documents requested may violate the attorney-client privilege. It is well established that "neither the client nor counsel may be compelled . . . to produce a document which has the status of a privileged communication between attorney and client when the privilege is claimed by the client" (Bloodgood v Lynch, 293 NY 308, 313 [1944]; see also Beach v Oil Transfer Corp., 23 Misc 2d 47 [Sup Ct, Kings County 1960]). As the client has clearly not waived the attorney-client privilege, Putney, Twombly, Hall & Hirson, LLP is directed to turn over the documents in their possession which are responsive to the subpoena as amended or stricken herein to current counsel to the executor within thirty days of the date of this decision. Although many of the documents which are requested in the subpoena do not appear to violate the attorney-client privilege, this court will not presume to make a determination without first [*3]allowing counsel to review the records and prepare a privilege log. The privilege log shall specify the nature of the contacts, who prepared the records and the basis of the claimed privilege (Matter of Subpoena Duces Tecum to Jane Doe, 99 NY2d 434,442 [2003].

Finally, the frequency and volume of the discovery motions in the proceedings in this case have been taxing on the court. Accordingly, the court prohibits either side from making future discovery motions until after counsel for both sides have appeared for conference before Court Attorney-Referee Eugene H. Shifrin who shall be responsible for monitoring the discovery process in this case. A party seeking a discovery conference before Mr. Shifrin will do so in writing, on notice to opposing counsel, and will explain the discovery issue or issues in a letter not to exceed three pages in length, or as Mr. Shifrin otherwise directs. Unless otherwise directed by Mr. Shifrin, opposing counsel may respond in writing in a letter not to exceed three pages in length. A conference to discuss the discovery issues (s) will then be scheduled by Mr. Shifrin.

This constitutes the decision and order of the court.

Dated: September 26, 2013

Edward W. McCarty III

Judge of the

Surrogate's Court Footnotes

Footnote 1: Some of the exchanges between the attorneys include references to "Nazi-influenced hatred", accusations of vexatious litigation, references to consistently heated rhetoric and pleas on both sides for civility. All of the exchanges seem to inflame rather than facilitate settlement. Moreover, the court has observed how quickly a routine conference can devolve into a heated exchange of accusations.