I dissent. Once again the majority has read into section 29 of the Workmen’s Compensation Law an unwarranted limitation on the lien given to a compensation carrier against "any recovery” in a third-party action. Joining with Mr. Justice Mahoney in dissent in Matter of McKay v Town of West Seneca (51 AD2d 373, 377), I *382rejected such a view, and I reject it here again. In my judgment, the provisions of section 29 are absolute. The purpose of the Workmen’s Compensation Law is to guarantee certain benefits to an employee injured in the course of his employment, subject to reduction to the extent of recovery from another source. Here, the petitioner has obtained such a recovery, but the majority takes the position that since the equities resulting from the applicability of the no-fault insurance law weigh in petitioner’s favor, the appellant as compensation carrier must bear the burden of the loss.
I do not disagree with the majority’s view of the equities, but in my judgment the result is based upon incorrect assumptions' as to the inviolability of the no-fault carrier’s entitlement to a setoff of compensation benefits. Paragraph (b) of subdivision 2 of section 671 of the Insurance Law defines "First party benefits” as excluding "amounts recovered or recoverable * * * under * * * laws providing * * * workmen’s compensation benefits”. The effect of section 29 in this situation, if properly applied, is that there are in practice no compensation benefits "recovered or recoverable”, since that statute gives to the compensation carrier a full refund of all payments made. The fact that petitioner’s no-fault carrier has already apparently reduced payments to the petitioner by the amount of the compensation award should not be accepted as a fait accompli which precludes the compensation carrier from exercising its statutory rights. In my judgment, it is the no-fault carrier which should suffer the loss, and petitioner should be required to proceed against the no-fault carrier to enforce his rights against it. Only where there is no third-party recovery, and therefore no fund as contemplated under section 29 against which the compensation carrier’s lien exists, should the no-fault carrier be entitled to set-off compensation benefits under section 671 of the Insurance Law. I, therefore, vote to reverse.