Pine, J. (dissenting). I respectfully dissent. In my view, Supreme Court did not abuse its discretion in computing the award of counsel fees (see generally, Matter of Rahmey v Blum, 95 AD2d 294, 299-300; see also, Friar v Vanguard Holding Corp., 125 AD2d 444, 447). The record before us, which includes the time records of plaintiffs’ attorney and the transcript of the fee hearing, is complete. Because the majority disagrees with Supreme Court, it should make its own findings with respect to the appropriate attorney’s fees, particularly in light of the fact that the Justice who decided the case is no longer in office.
In addition, there is no support in the record for the majority’s conclusory statement that the hours of legal work performed by an attorney who assisted plaintiffs’ counsel but who was not associated with him "reflected duplication of services, inefficiency, and padding.” Moreover, there is no logical basis for precluding compensation for legal work done in plaintiffs’ employ and at the direction of plaintiffs’ counsel. Thus, I disagree with the majority’s conclusion that the court abused its discretion by awarding compensation for that legal work.
I further disagree with the majority that the award of counsel fees should be apportioned among the settling defendants according to the total value of the claims against them. Although I agree with the majority that Supreme Court erred in holding that defendants’ liability for counsel fees should be joint and several, I find it inequitable to apportion the attorney’s fees according to the value of the claims because the burden would disproportionately benefit those defendants who, fortuitously, are subject to fewer claims from the plaintiff class. The issue was identical with respect to all defendants and the legal work performed by plaintiffs’ attorney was determined by the strength of the opposition on that issue. In fact, the opposition mounted by the various defendants was not proportionate to their potential monetary exposure, and, indeed, counsel for a defendant with a potentially de minimis exposure appears to have taken a leading role. Thus, the liability for the award of counsel fees should be divided equally among the settling defendants. (Appeals from Order and Judgment of Supreme Court, Erie County, Ostrowski, J.— Attorney’s Fees.) Present—Doerr, J. P., Boomer, Pine, Balio and Lawton, JJ.