The claimed absence of proof in the record concerning the plaintiff’s assignment to the defendant Grynbal’s carrier is immaterial. It should be noted that the defendants Mandel do not question that such an assignment existed, but, rather, inf eren tially challenge it on the ground that it may not have been executed pursuant to the Grynbal’s insurance policy provisions (cf. Miller v. Liberty Mut. Fire Ins. Co., 29 A D 2d 982). Nevertheless, the plaintiff’s attorney, in his affirmation submitted on the motion to reargue, averred that such an assignment occurred. This allegation is uncontradicted and, if deemed to be the fact, it is apparent that the plaintiff will not obtain a double recovery (see Wyman v. Allstate Ins. Co., 29 A D 2d 319, mot. for lv. .to app. den. 22 N Y 2d 646). However, assuming that proof of such assignment is insufficient, the result reached by the majority appears to be contrary to well-settled principles as previously set forth by this and other courts.
Generally, payment from collateral sources does not reduce the amount recoverable in a personal injury action against the tort-feasor (Coyne v. Campbell, 11 N Y 2d 372). Accordingly, it has been held that damages cannot be mitigated because of payments received by the injured party from disability compensation, pension funds or retirement allowances (Brumel v. Whol, 29 A D 2d 843; Szybura v. City of Elmira, 28 A D 2d 1154; Carroll v. Roman Catholic Diocese of Rockville Centre, 26 A D 2d 552, affd. 19 N Y 2d 658; Seidel v. Maynard, 279 App. Div. 706; Lehr v. City of New York, 30 Misc 2d 953, affd. 16 A D 2d 702; D’Amico v. Resnik, 22 Misc 2d 545). Furthermore, it is settled that evidence of insurance proceeds paid to an injured plaintiff or third-party beneficiary of an insurance contract is not admissible in mitigation of damages (Healy v. Rennert, 9 N Y 2d 202; Cady v. City of New York, 14 N Y 2d 660, affg. 19 A D 2d 822; Silinsky v. State-Wide Ins. Co., 30 A D 2d *4331; cf. Rubin v. Empire Mut. Ins. Co., 32 A D 2d 1). However, in Moore v. Leggette (24 A D 2d 891, affd. 18 N Y 2d 864) this court held that a defendant who is ‘1 prudent enough ’ ’ to procure insurance for the benefit of the injured party is entitled ‘ ‘ to the benefit of such foresight and to reduction in damages to the extent ” that, payment had been made by the insurance carrier (p. 892). The majority is now apparently departing from the salutary rule espoused in Moore and gives to the defendants Handel the benefit of one half of medical payment paid to the plaintiff on behalf of the defendant Grynbal. On the record before us this windfall is unwarranted and has no support in statute or case law.
Section 15-103 of the General Obligations Law, which is cited by the majority for the proposition that payments by one joint tort-feasor reduce pro tcmto the damages recoverable from the other joint tort-feasor, is inapplicable for two reasons. First, the payment made herein was contractual in nature and is due the plaintiff even if it be ultimately held that the defendant Grynbal was not negligent.
In Silinsky, this court recently said (30 A D 2d 1, 4-5): “In the case at bar, although the plaintiff did not effect this coverage or contribute to the fund, the defendant was under a contractual obligation to pay her. if the plaintiff had recovered from the insurer and sued the tort-feasor, we would be of the opinion that the latter could not plead such recovery in reduction of damages. In that situation, the plaintiff as a third-party beneficiary to the contract should have the same rights as the insured who purchased the coverage.”
In Moore {supra), this court gave to the plaintiff, as a third-party beneficiary, the benefits of the defendant’s insurance coverage, but carved an exception out of the collateral source rule and permitted the defendant to plead his carrier’s payment in reduction of damages. Contrary to the assertion contained in the majority opinion that the third-party beneficiary theory has apparently been rejected (citing Moore v. Leggette, 18 N Y 2d 864, 865), neither the affirmance without opinion by the Court of Appeals nor a careful reading of the State Reporter’s notes leads to that conclusion. Silinsky merely reaffirmed that result. Consequently, it is clear that the legislative policy embodied in the cited provision of the General Obligations Law does not come into play when medical payments are required to be made on behalf of an insured, pursuant to a contract of insurance, and whether or not the insured is a joint tort-feasor (Mid-Cent. Mut. Cas. Co. v. Spanjer, 101 Ill. App. 2d 468).
*434Secondly, that statutory provision specifically excepts, from the general joint tort-feasor payment rule, payments made on behalf of a joint tort-feasor where the payor “ stand[s] in the relation of a surety.” At bar, no effort is made by the defendants Mandel to otherwise characterize the insurance carrier.
As previously stated, whether the assignment by the plaintiff is in the case or not is immaterial since, adopting the most favorable view of the evidence on behalf of the defendants Mandel, the plaintiff can recover compensatory and special damages from the tort-feasor where the carrier has waived its subrogation rights (see De Cruz v. Reid, 69 Cal. 2d 217). Furthermore, the result herein would appear to be contrary to those cases which permit an insured plaintiff to recover from his carrier and still recover the full amount, including the sum previously reimbursed by the insurer, from the tort-feasor (Healy v. Rennert, 9 N Y 2d 202, supra; Cady v. City of New York, 14 N Y 2d 660, supra). The-theory is that it is unfair to require one who falls within tlie ambit of insurance coverage to forego its benefits and give to the tort-feasor, excepting the prudent defendant, an undeserved windfall. The ultimate burden is placed upon the perpetrator of the injury while, in the ordinary case (in which the insurer would have subrogation rights), the plaintiff recovers for his actual economic los-s.
At bar, the net result of the instant determination is to deprive the prudent defendant of the benefits delineated in Moore and to give to his codefendant an undeserved windfall pro tanto. Absent significant strong public policy considerations, I perceive no persuasive rationale for reaching that conclusion.
The order should be affirmed.
Christ, Acting P. J., and Benjamin, J., concur with Babin, J.; Brennan, J., dissents in opinion which Hopkins, J., concurs.
Order reversed, on the law and the facts, with $10 costs and disbursements, and plaintiff’s motion denied, with $10 costs.