O'Mara v. Rochester Gas & Electric Corp.

Judgment unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: We agree with the contention of defendant that Supreme Court erred in providing that the lump sum payments for attorney’s fees and litigation expenses ordered pursuant to CPLR 5041 (c) be paid from the future damages portion of the 925 judgment. Pursuant to CPLR 5041 (c), a portion of those lump sum payments must be paid out of the corresponding portion of the verdict upon which that portion is based (see, Reed v Harter Chair Corp., 196 AD2d 123; Rohring v City of Niagara Falls, 192 AD2d 228, affd 84 NY2d 60). Thus, we remit the matter to Supreme Court to recalculate the judgment. We have reviewed the remaining contention of defendant and find it to be without merit. (Appeal from Judgment of Supreme Court, Monroe County, Wisner, J.—Negligence.) Present—Balio, J. P., Lawton, Callahan, Doerr and Boehm, JJ.