Summary
In O'Mara v. Rochester Gas Electric Corp., 206 A.D.2d 924, the Fourth Department alluded to the topic, but in Reliant Airlines, Inc. and Linda E. Hendricks v. County of Broome, (90-CV-537 [1995 U.S. Dist. LEXIS 17603]), in the United States District Court for the Northern District, the Hon. Neil McCurn, noted, in footnote 5, that the O'Mara court was referring to payment of attorneys' fees and not to litigation expenses.
Summary of this case from Blakesley v. StateOpinion
July 15, 1994
Appeal from the Supreme Court, Monroe County, Wisner, J.
Present — Balio, J.P., Lawton, Callahan, Doerr and Boehm, JJ.
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 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 A.D.2d 123; Rohring v. City of Niagara Falls, 192 A.D.2d 228, affd 84 N.Y.2d 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.