This is a proceeding to revoke letters testamentary issued to Marianne Nestor Cassini. The petitioner is Christina Cassini. The petitioner further seeks a finding that one of the nominated successor executors, Peggy Nestor, is ineligible, and further seeks the appointment of the petitioner as the successor executor and administrator c.t.a. of the estate of Oleg Cassini. The petition is opposed.

Oleg Cassini died on March 17, 2006. The decedent was survived by his wife, Marianne Nestor Cassini (referred to in the decedent's will as Marianne Nestor) and two daughters from a prior marriage, Christina Cassini and Daria Cassini. Marianne Nestor Cassini was appointed executor of the estate and trustee by this court on August 15, 2007. [*2]

The decedent's will, in dispositive part, established a trust for the benefit of Daria Cassini, who was disabled and for whom a guardian had been appointed by the State of New Jersey. Daria post-deceased on September 11, 2010. The trust was to be funded with $500,000 with the remainder to Christina Cassini upon the death of Daria Cassini. The decedent also bequeathed the sum of one million dollars ($1,000,000.00) to his daughter, Christina Cassini. Pursuant to Article Ninth, Marianne Nestor Cassini was appointed executor and "[i]f said Marianne Nestor shall fail to qualify or cease to act, I nominate, constitute and appoint my friend and attorney, William Pollock, my brother, Igor Cassini, my daughter, Christina Cassini and Peggy Nestor or the survivor of them or sole survivor of them to be successor...". Igor Cassini died and William Pollok filed an answer in this proceeding in which he stated that he is no longer interested in acting as successor executor and seeks a declaration that he is no longer a successor executor.

The petitioner seeks revocation and/or suspension of Marianne Nestor Cassini's letters pursuant to SCPA 711, 712 and 719 and alleges that the grounds to revoke her letters consist of the following acts on the part of the executor: paying personal claims without court approval in violation of SCPA 1805; failing to comply with orders of the court regarding document production and privilege logs; commingling estate assets; failing to maintain estate records; making false and contradictory statements; and complete failure to understand her fiduciary duties. The executor filed an answer denying the allegations.

The history of this case is well known to the court as there have been at least twenty-two decisions rendered, multiple motions filed and over one hundred court appearances. As stated previously, Oleg Cassini died on March 17, 2006. In April of 2006, a probate proceeding was commenced by Marianne Nestor Cassini in the Surrogate's Court, New York County. Marianne Nestor Cassini filed an application for preliminary letters dated April 4, 2006 wherein the testamentary assets of the estate included Oleg Cassini, Inc. with a value in excess of one million dollars. Thereafter, Ms. Nestor Cassini moved to transfer the venue of the proceeding to the Surrogate's Court, Nassau County which motion was granted.

Marianne Nestor Cassini then applied to be appointed executor by the Surrogate's Court, Nassau County. Again, Ms. Nestor Cassini applied for preliminary letters testamentary which included an inventory of assets. Set forth as testamentary assets were the following: shares of Oleg Cassini, Inc. (value in excess of $40,000,000) and shares of Cassini Parfums, Ltd. (value in excess of $2,000,000). Under Schedule C entitled Mortgages, Notes and Cash, Ms. Nestor Cassini listed "Personal note to Oleg Cassini from Marina C. Minoli" in the amount of $50,000.00 and bank accounts at JP Morgan Chase, Deutsche Bank and US Trust Company (balances unknown). Under Schedule E, Jointly Owned Property, she listed 135 East 19th Street, New York, NY (estimated $10,000,000) and under Schedule F, Other Miscellaneous Property, the executor listed antiques, artwork and furnishings valued in excess of $10,000,000.

As set forth previously, Marianne Nestor Cassini was appointed executor and trustee by this court on August 15, 2007. In December of 2007, Christina Cassini commenced a proceeding to determine the validity of a claim.^[FN1] After converting the proceeding to a motion for summary judgment, the court found the claim to be valid and that Christina Cassini was entitled to 25% of [*3]the net estate (see Decision No. 713 dated December 4, 2009). The executor moved to reargue the decision and shortly thereafter her counsel made a motion to be relieved as counsel, which was granted. Thereafter, the executor's new counsel made a motion to renew and reargue. The executor claimed, inter alia, in support of motion to renew, that she had recently become privy to information that Christina Cassini was not the decedent's biological child. The court granted the motion to renew and reargue and adhered to its prior decision (Dec. No. 26886 dated December 13, 2010). The decisions were subsequently appealed and the decisions were upheld (Matter of Cassini, 95 AD3d 1311 [2d Dept 2012] leave to appeal dismissed 21 NY3d 895 [2013]).

In December 2009, Christina Cassini filed a petition to compel Marianne Nestor Cassini to account as executor. Marianne Nestor Cassini filed her account in January of 2012.^[FN2] The account covered the period of March 17, 2006 through December 21, 2010. In the accounting, Marianne Nestor Cassini claims personal ownership of Oleg Cassini, Inc. ($43,536,435), Cassini Parfums, Ltd. ($1,595,000) and a US Trust Bank Account ($660,603). She further claims that she is owed $10,282,000 from Oleg Cassini, Inc. With regard to Cassini Parfums, Ltd., the executor claims that she and her sister, Peggy Nestor, have claims against Cassini Parfums, Ltd. in the amount of $2,641,684. The executor also sets forth in Schedule A (property received) "it has not yet been determined if all of the Other Miscellaneous Property (which totals $5,864,140.00) included in the Summary and listed in Schedules A and G are assets of the Estate or are owned by Marianne Nestor Cassini." Of the remaining estate property, the executor lists collection of two bank accounts: JP Morgan Bank ($315,104) and Deutsche Bank ($726,232).

A further review of the account as filed shows seven schedules (A1, B, F, A2, C2, E1 and G1) with the following as the sole entry: "Information to complete this schedule is not currently available". Schedule C has the same entry with the added notation: "as set forth in greater detail in Schedule K, the funeral and administration expenses have been paid directly either by Marianne Nestor Cassini or by Oleg Cassini, Inc." Schedule E, distributions, shows the following distributions of estate property: Marianne Nestor Cassini - $315,104; Daria Tierney Cassini Trust - $500,000; Marianne Nestor Cassini - $226,232. The total distributions made of $1,041,336 equal the sum of the two bank accounts that the executor states she collected in Schedule A.

As part of the accounting proceeding, the parties held examinations pursuant to SCPA 2211 of Marianne Nestor Cassini. They have each referred to the transcript to support their own positions with regard to the instant proceeding. A review of the transcript shows that the response of the executor to many questions regarding the assets of the estate, such as: the record keeping; the documentation; how accounts were titled; who prepared tax returns for the estate; appraisals; insurance on the personal miscellaneous property; where the property is located; when distributions were made and how they were made; was that the executor either did not know the answer or she did not remember the answer. With regard to ownership of the assets, however, she was clear that she owned them all either as joint tenant with right of survivorship, or because the account was an in trust for account, or she exercised an option to purchase prior to the [*4]decedent's death. She did not, however, have documentation of the title of many accounts or dates of distribution of assets as she testified repeatedly that a fire destroyed almost all of the documents in question. When asked if she had insurance of any kind for the miscellaneous personal property, she replied no. Finally, it should be noted, that the testimony at the deposition degenerated into accusations about investigators almost killing dogs, requests for protective orders (personal), allusions to Nazis, questioning the citizenship of an attorney, demands for apologies and accusations of people smirking and lying.

Christina Cassini also commenced a proceeding to compel payment of her bequest of one million dollars. On October 21, 2010, the court issued a decision (Dec. No. 26817) wherein Marianne Nestor Cassini was ordered to pay the bequest within ten days of the date of the notice of entry of the decision. In March of 2011, Christina Cassini moved to hold the executor in contempt for failing to pay the bequest. The motion was denied by decision dated June 2, 2011 (Dec. No. 27249) and the executor was directed to deliver personal property of the decedent which she alleged satisfied the bequest as in-kind distributions. The distribution was made and a further motion was made by Christina Cassini to pay the bequest as she alleged that the property distributed to her amounted to $27,053.90. By decision and order dated June 26, 2013 (Dec. No. 28904), the executor was directed to pay Christina Cassini $973,946.10 within fourteen days of Christina Cassini filing a refunding bond in that amount. Any issues regarding the valuation of subject property were reserved for the accounting proceeding.

Daria Cassini died on September 11, 2010. In March of 2011, Christina Cassini filed a petition to compel Marianne Nestor Cassini and Richard Rowe to account as trustees of the supplemental needs trust for Daria's benefit. Richard Rowe and Marianne Nestor Cassini were ordered by this court on July 20, 2011 to file the account. The account was filed the next day, July 21, 2011.

As set forth previously, Article Sixth of Oleg Cassini's will established a trust for the benefit of Daria Cassini to be funded with $500,000.00. The trustee (Marianne Nestor Cassini) had the discretion to distribute the net income and principal, including the entire amount, to Daria Cassini. Daria Cassini was disabled. The trust as drafted under the decedent's will would jeopardize Daria Cassini's entitlements to any government benefits.

On or about April 8, 2008, Marianne Nestor Cassini, acting as trustee under Article Sixth of the decedent's will established, without court permission, the Daria Cassini Supplemental Needs Trust and named herself and Richard Rowe as trustees. With regard to the appointment of trustees, the decedent's will, in Article Ninth, provided for the appointment of Marianne Nestor as trustee with Christina Cassini and William Pollok or the survivor of them as the successor trustee. Article Second of the Daria Cassini Supplemental Needs Trust provided that upon the death of Daria, the balance would be paid to Christina Cassini.

Richard Rowe and Marianne Nestor Cassini filed their account. In pertinent part it showed the receipt of principal in the total amount of $515,240.81; funeral and administration expenses in the total amount of $26,512.00; creditors claims of $40,240.81 ("refund of excess funding" to Marianne Nestor Cassini in the total amount of $15,240.81 and reimbursement to Richard Rowe of $25,000 for "out-of-pocket expenses & prior services"); distributions made (primarily funds to pay for Daria's needs and expenses) in the total amount of $61,276.50; income collected in the amount of $18,806.96 and commissions paid in the total amount of [*5]$18,322.00. The balance remaining on hand was $387,696.46. Christina Cassini is listed as an interested party and her nature is described as follows: "[o]n information and belief, Christina Tierney Cassini Granata Belmont purports to be the remainderman of the within Trust and entitled to the balance on hand." Schedule J, other pertinent facts, provides with regard to the balance of the trust:

After Daria died on September 11, 2010, Mr. Rowe advised Marianne that, as his services were no longer required, he resigned as co-trustee of the Supplemental Needs Trust for her benefit. At Marianne's instruction, the amount remaining on hand on October 25, 2010 ($387,696.46), was tendered by Mr. Rowe to Marianne's counsel. On information and belief same was thereafter forwarded to Marianne. On information and belief, it is Marianne's position that the monies used to fund the trust emanated from assets to which she has a claim, that she was under no legal obligation to establish the trust with funds not emanating solely from the Estate of Oleg Cassini and that, although the Daria Cassini Supplemental Needs Trust ostensibly provides for the distribution of the remainder to Christina Tierney Cassini Granata Belmont, the balance on hand is not properly payable to Mrs. Belmont but to Marianne.

Richard Rowe subsequently filed an affidavit amending his account to reflect a claim of $198,870.00 as the amount he alleges is due per an agreement with the decedent. A motion was made for partial summary judgment by the attorneys for Christina Cassini regarding the funding of the supplemental needs trust which was denied by this court (Dec. No. 28968 dated Sept. 30, 2013).

From the time the estate accounting proceeding was filed, multiple motions have been filed by both Marianne Nestor Cassini and Christina Cassini regarding discovery. By decision dated September 26, 2013 (Dec. No. 29058) the court waived the good faith requirement as futile and appointed a member of the court's law department to supervise discovery. Part of the document requests that were litigated regarded the estate tax returns and fiduciary tax returns, which the executor claimed she did not have possession of, she had never turned over copies to her attorneys (either set), and she could not remember the name of the accountant who prepared the returns (although when provided with the name of the accountants at one examination, she remembered that they had prepared the returns). The attorneys for Christina Cassini subpoenaed the records, copies of which were given to them in December of 2013. As such, the attorneys filed a sur-reply in this proceeding and asked the court to consider the documents. The attorneys for the executor object to the court's consideration of the sur-reply.

With regard to the consideration of the sur-reply filed by the attorneys for Christina Cassini, the court has the discretion to consider additional pleadings as long as they would serve any legitimate function (see generally SCPA 302; Olsen & Chapman Construction Co. v Cazenovia, 30 AD2d 738 [3d Dept 1968]). The consideration of the tax returns not only serve a legitimate purpose, as they set forth how the assets were characterized but the return should also come as no surprise to the executor. Although the copies of the 706 provided as exhibits to the sur-reply are not signed by the fiduciary, the documents were provided by the accountants in response to a subpoena of the returns they filed or prepared on behalf of the fiduciary. The court will therefore consider the pleadings identified as Sur-Reply Affirmation in Further Support of Executor's Suspension dated December 10, 2013 and the affirmation of Charles H. Kaplan, Esq. [*6]in reply to petitioner's sur-reply and in opposition to petitioner's motion to remove executor without a hearing executed on February 10, 2014.

The estate tax return (Form 706) lists on Schedule B (stocks and bonds) the following: JP Morgan, Deutsche Bank, US Trust Co., Oleg Cassini Inc., and Cassini Parfums Ltd. with a combined value of nearly $47,000,000. Schedule C (mortgages, notes and cash) show amounts due from Cassini Parfums Ltd ($41,684.00) and due from Oleg Cassini, Inc. ($3,700,000.00); Schedule E (jointly owned property) lists real estate located at 135 East 19th Street; Schedule F (other miscellaneous property) lists artwork, furniture & antiques and memorabilia from Jaqueline Kennedy and Grace Kelly in the total amount of $5,864,140.00. Schedule M shows everything else, less the following: property transferred to Christina Cassini Granata Belmont ($1,000,000); property transferred to trust for Daria Cassini ($500,000); and funeral expenses, accountant fees, attorney fees and appraisals, going to Marianne Nestor Cassini.

The removal of a fiduciary without a hearing is a drastic remedy. The testator enjoys the right to determine who is the most qualified and his or her "solemn selection is not lightly to be disregarded" (Matter of Leland, 219 NY 387, 393 [1916]). The Surrogate may only remove the fiduciary "where the misconduct is established by undisputed facts or concessions, where the fiduciary's in court conduct causes such facts to be within the court's knowledge or where facts warranting the amendment are presented to the court during a related evidentiary hearing" (Matter of Duke, 87 NY2d 465, 472 [1996] internal citations omitted). Removal will be exercised sparingly and only upon a clear showing of serious misconduct that endangers the safety of the estate (id. at 473).

Under the circumstances of this case, the court declines to revoke letters testamentary issued to Marianne Nestor Cassini without a hearing. SCPA 712, however, provides that where a petition seeking suspension, modification or revocation of letters pursuant to SCPA 711 is entertained, the court may suspend the respondent during the pendency of the proceeding. Grounds such as engaging in wasteful litigation, refusing to provide information regarding estate accounts which results in a compulsory accounting proceeding, filing a deficient account and delay in estate administration "caused by the volume of litigation" that has occurred, resulted in the suspension of a fiduciary during the pendency of the revocation proceeding (Matter of Seifer, NYLJ, Sept. 16, 2009 at 35, col 6 [Sur Ct, New York County]). Further, a fiduciary was suspended where the court found, inter alia, that his interest in the property may be in conflict and his self-dealing may color his judgment and cause him to administer the trust in his own favor (Matter of Chadrjian, 10 Misc 3d 1077[A] [Sur Ct, Nassau County 2006]). Moreover, the court found that a fiduciary's "repeated, obdurate failure to cooperate with the collection of estate assets and the payment of estate obligations" amounted to waste and improvidence to warrant immediate suspension of the fiduciary (Matter of Walden, 2007 Misc Lexis 4942 [Sur Ct, Westchester County 2007]).

In the instant proceeding, the executor has engaged in numerous activities which require the court to suspend her letters immediately. Some examples of the conduct of the fiduciary which require her suspension are set forth below. The executor has filed numerous contradictory statements with the court regarding the ownership of estate assets. She has failed to identify what comprises the miscellaneous personal property beyond some memorabilia (valued in excess of $4,000,000.00), where it is located, and in response to the query about whether it was insured, [*7]she replied no. The executor filed a deficient account and in response to multiple schedules, merely provided that the information was not yet available. With regard to the maintenance of estate records, the fiduciary repeatedly testified that she did not have any, that they were lost in a fire and that she had not made any effort to recover the records. She stated in her account as fiduciary that she paid $500,000 of estate assets to the Daria Cassini Supplemental Needs Trust and later claimed the funds were her own. While ostensibly acting as trustee of the supplemental needs trust set up under the decedent's will, the executor set up a different trust in contravention to the decedent's wishes and without court permission. She further paid herself the balance of the supplemental needs trust and sidestepped the requirements of SCPA 1805 (court permission required before payment of debt claimed against property of a decedent to a fiduciary) by claiming that the funds were her own and not the decedent's. The executor has personal claims which amount to almost the entire estate which puts her in position of conflict with the beneficiary. The petitioner had to compel the fiduciary to account as executor and as trustee. The petitioner had to repeatedly move to compel the executor to pay her bequest. The eighth anniversary of the decedent's death is imminent and the parties in the eight years have engaged in constant litigation. The parties are clearly hostile to one another. All of these factors warrant the immediate suspension of letters testamentary issued to Marianne Nestor Cassini. Further, in light of the hostility and the accusations against both of the remaining successor executors, the court declines to appoint them at this time. Instead, the court appoints the Public Administrator of Nassau County as temporary administrator of this estate.

A hearing on the revocation of letters will be held on May 16, 2014, at 9:30 a.m. Since discovery on the underlying proceedings in this case has been ongoing for over 6 years, no additional discovery on the removal will be permitted (CPLR 3101[a]).

This decision constitutes the order of the court and no additional order need be submitted.

Dated: March 13, 2014

EDWARD W. McCARTY III

Judge of the

Surrogate's Court