ANONYMOUS v. Peter F. Edelman, Esq., Outgoing Attorney-Respondent. (1999)

Supreme Court, Appellate Division, First Department, New York.

ANONYMOUS, Plaintiff-Appellant, v. ANONYMOUS, Defendant. Peter F. Edelman, Esq., Outgoing Attorney-Respondent.

Decided: February 04, 1999

LERNER, J.P., RUBIN, TOM and MAZZARELLI, JJ.

Plaintiff-Appellant, Pro Se. Peter Edelman, Pro Se.

Order, Supreme Court, New York County (Sherry Klein Heitler, J.), entered on or about November 14, 1997, which referred the issue of the value of outgoing attorney-respondent's legal fees to a Special Referee for a hearing pursuant to Judiciary Law § 475, unanimously affirmed, with costs.

Respondent's commencement of a plenary action to recover his fee did not constitute an election of remedies precluding him from pursuing his rights under Judiciary Law § 475 in the main action (see, Butler, Fitzgerald & Potter v. Gelmin, 235 A.D.2d 218, 219, 651 N.Y.S.2d 525). The unavailability of a jury trial under the statutory scheme does not make it unconstitutional (see, Matter of Atterbury, 222 N.Y. 355, 360, 118 N.E. 858). We also find that the IAS court properly referred the matter for a hearing (see, New York State Crime Victims Bd. v. Abbott, 212 A.D.2d 22, 28, 627 N.Y.S.2d 629; cf., CPLR 4317[b] ).

MEMORANDUM DECISION.

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