I cannot agree to deny this claimant any recovery for loss of use. Such a travesty of justice was rectified in Allanson v Cummings (81 AD2d 16). Therein, this court rejected the harsh common-law rule which denied any damages for loss of use of a motor vehicle which is damaged beyond repair in an accident caused by the negligence of another. We held that the owner of such a vehicle damaged beyond repair is entitled to the rental value of a substitute vehicle for a reasonable time until replacement of the destroyed vehicle can be made. To deny plaintiff any recovery for loss of use under the circumstances herein appears to resurrect the old common-law rule. Further, it will stifle any incentive for an *10insurance carrier to promptly adjust a loss for which it is liable and is prejudicial by imposing an undue burden upon an innocent victim. Under the majority decision, it is foreseeable that an individual whose motor vehicle has been totaled as a result of another’s negligence will be forced to purchase a replacement vehicle, for which there may not be available funds, only to learn at a later date that the negligent tort-feasors’ carrier does not deem the loss to be total or else rent a car until such time as the carrier acts and then be denied recovery of the reasonable rental payment. Either result is contrary to the policy established in Allanson v Cummings (supra). I view the decision of the trial court to be consistent with the rationale enunciated by Justice Cardamone therein. We cannot ignore the realities of claims adjusting. The record demonstrates that plaintiff had limited funds as he was in the process of purchasing a house. The court found sufficient proof “that for a stated period he was in fact unable to obtain a replacement vehicle. Upon such proof plaintiff may then recover damages for the loss of the destroyed vehicle’s use which is the reasonable rental value of a substitute vehicle for a reasonable period of time until a replacement can be made” (Allanson v Cummings, supra, p 21).
Accordingly, the judgment should be affirmed.
Doerr and Moule, JJ., concur with Hancock, Jr., J. P.; Denman, J., concurs in an opinion; Callahan, J., dissents and votes to affirm in a separate opinion.
Judgment modified, and as modified affirmed, without costs, in accordance with opinion by Hancock, Jr., J. P.