Dillon v. Hershon , 686 N.Y.S.2d 719 ( 1999 )

—In related actions to recover damages for medical malpractice (Action No. 1), and to recover legal fees (Action No. 2), Andrew Rosner appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Winslow, J.), dated March 6, 1998, as denied his motion to be relieved as counsel for the plaintiff in Action No. 1 and granted the cross motion of the defendant in Action No. 2 to consolidate Action No. 1 with Action No. 2 and to dismiss the complaint in Action No. 2.

Ordered that the appeal from so much of the order as denied the appellant’s motion to be relieved as counsel in Action No. 1 and granted that branch of the cross motion which was to consolidate Action No. 1 with Action No. 2 is dismissed as academic; and it is further,

Ordered that the order is otherwise affirmed insofar as appealed from; and it is further,

Ordered that the respondent is awarded one bill of costs.

The action to recover legal fees for services rendered in the medical malpractice action was properly dismissed since, at the time the order appealed from was issued, the medical malpractice action was still pending, the appellant was still the attorney of record in the medical malpractice action, and the appellant had agreed to represent the respondent in the medical malpractice action on a contingent fee basis (cf., Mahan v Mahan, 213 AD2d 458).

Subsequent to entry of the order appealed from, the medical malpractice action was dismissed, rendering the appellant’s remaining contentions academic (see, Perez v Perez, 239 AD2d 868). Mangano, P. J., Bracken, Krausman and Goldstein, JJ., concur.