I would modify to limit the claim in a new trial against the third-party tortfeasor for basic economic loss to the amount of the lien, and otherwise affirm.
It is conceded that there could be a harsh unintended result if the lien were to wipe out the recovery for pain and suffering, and while there is any question still remaining as to the possibility of a proper recovery, we should not foreclose the plaintiff. (Cf. United States v Government Employees Ins. Co., 605 F2d 669.)
Fein, Sullivan and Lane, JJ., concur with Sandler, J.; Kupferman, J. P., dissents in part in an opinion.
Order, Supreme Court, Bronx County, entered on September 27, 1978, reversed, on the law, without costs and without disbursements, and the motion for a new trial denied.