
    Jeffrey Rutherford, Respondent, v Erie County Industrial Development Agency et al., Appellants.
    (Appeal No. 2.)
    [825 NYS2d 401]
   Appeal from a judgment of the Supreme Court, Erie County (Peter J. Notaro, J.), entered September 20, 2005 in a personal injury action. The judgment, upon a jury verdict, awarded damages in favor of plaintiff and against defendants.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by setting aside the award of damages for future pain and suffering and for future medical expenses and as modified the judgment is affirmed without costs, and a new trial is granted on those elements of damages only unless plaintiff, within 20 days of service of a copy of the order of this Court with notice of entry, stipulates to reduce the award of damages for future pain and suffering to $1 million and for future medical expenses to $325,000, in which event the judgment is modified accordingly and as modified the judgment is affirmed without costs.

Same memorandum as in Allison v Erie County Indus. Dev. Agency (35 AD3d 1159 [2006]). Present—Hurlbutt, A.P.J., Gorski, Smith and Centra, JJ.  