Beirman v. Macaluso ( 1982 )

— Judgment unanimously affirmed, without costs. Memorandum: Petitioners, former clients of respondent attorney, brought this CPLR article 78 proceeding to compel him to file their divorce decrees, to obtain class action certification for other unknown clients of respondent and to bar him from recovering unpaid fees for his services (see Matter of Kennedy v Macaluso, 86 AD2d 775, affd 56 NY2d 630). Special Term denied petitioners’ class action certification, and it denied their request that the court declare that respondent attorney had abandoned petitioners’ cases and therefore was foreclosed from seeking payment for his services. The court also ordered respondent to immediately file petitioners’ divorce decrees and any other unfiled divorce decrees in his possession. The parties filed cross appeals but at oral argument before this court respondent withdrew his cross appeal and his counsel assured the court that respondent had filed all divorce decrees of his clients or former clients. That being so, the issues raised on respondent’s cross appeal are moot and the need to certify a class action is unnecessary. We, therefore, affirm the judgment appealed, noting only that respondent’s entitlement to any unpaid fees from his clients or former clients is a matter for resolution in plenary actions against them individually. (Appeals from judgment of Supreme Court, Jefferson County, J. O’C. Conway, J. — art 78.) Present — Simons, J. P., Hancock, Jr., Callahan, Moule and Schnepp, JJ.