O'Rourk v. Berner (249 A.D.2d 976, 1998)

—Judgment unanimously modified on the law and as modified affirmed without costs and new trial granted on the derivative cause of action only unless defendants, within 20 days of service of a copy of the order of this Court with notice of entry, stipulate to pay plaintiff John R. O’Rourk $20,000 on the derivative cause of action in which event the judgment is modified accordingly and as modified affirmed without costs in accordance with the same Memorandum as in O’Rourk v Berner ([appeal No. 1] 249 AD2d 975 [decided herewith]). (Appeal from Judgment of Supreme Court, Erie County, Whelan, J.— Damages.) Present — Denman, P. J., Pine, Wisner, Callahan and Fallon, JJ.