I agree with Justice Greenblott to the extent that pursuant to section 29 of the Workmen’s Compensation Law the lien of the compensation carrier attaches to any part of the recovery remaining after the payment of certain expenditures incurred in prosecuting the action.
Matter of McKay v Town of West Seneca (51 AD2d 373) is not controlling. That case involved a situation wliere the claimant-petitioner as a matter of statutes and law ¡ had no *383right to recover those items which are not actually paid to an employee as a matter of workmen’s compensation rights.
The petitioner herein is not asserting a right in his own behalf in proving lost wages and/or medical expenses. The workmen’s compensation carrier represented the employer and made mandatory payments pursuant to statute. It had no alternative.
Section 673 of the Insurance Law prohibits the recovery of such items "in any action by or on behalf of a covered person” (petitioner) (emphasis supplied). Subdivision 1 of section 29 of the Workmen’s Compensation Law directs that any recovery "shall be deemed for the benefit of such * * * carrier” (emphasis supplied). As a matter of law the statutory prohibition in section 673 of the Insurance Law should not be applied to actions brought by a recipient of workmen’s compensation benefits, to the extent of a workmen’s compensation lien on any recovery. In the present instance the amount of the lien will be paid out of an award for pain and suffering as adjusted by the trial court.
The error in this case is in regard to the judgment entered in the action against Thomas Tripple and Garland Jacobs and any relief the petitioner might seek will have to be in regard thereto and not against a no-fault insurance carrier.
I would reverse.
Kane and Main, JJ., concur with Larkin, J.; Greenblott, J. P., and Herlihy, J., dissent and vote to reverse in separate opinions.
Judgment affirmed, with costs.