Lang v. City of New York ( 1983 )

— In a negligence action to recover damages for personal injuries (1) the parties cross-appeal, as limited by their briefs, from so much of a judgment of the Supreme Court, Kings County (Kartell, J.), entered December 28,1981, as, upon a jury verdict, awarded damages to the plaintiffs as against the defendants, and (2) the Chubb Group of Insurance Companies appeals from an order of the same court (Spodek, J.), dated January 17, 1983, which granted plaintiffs’ motion to vacate the insurance company’s lien against the proceeds of the afore-mentioned judgment. Judgment reversed, insofar as appealed from, on the law, and new trial granted on the issue of damages only, without costs or disbursements. Appeal from the order dismissed, as academic, without costs or disbursements, in light of the determination of the appeal from the judgment. In our view, Trial Term erred in precluding the plaintiffs from introducing evidence of their basic economic loss as against the municipal defendants, which are not “covered persons” within the meaning of subdivision 10 of section 671 of the Insurance Law, and are therefore parties against whom such damages may be recovered (Insurance Law, § 673, subd 2). Accordingly, the plaintiffs must be afforded a new trial on the issue of damages, at least as against the municipal defendants, and since the introduction of this evidence may well affect the size of the verdict for anticipated future medical expenses and lost earnings, a new trial on the issue of damages as against the individual defendant is warranted as well (cf. Insurance Law, § 673, subd 3). In light of our determination reversing the judgment, it is not necessary to pass upon the propriety of the order dated January 17, 1983, except to observe that the no-fault insurer’s lien on the judgment can only attach to so much of the plaintiffs’ ultimate recovery as represents reimbursement for basic economic loss (Aetna Cas. & Sur. Co. v Jackowe, 96 AD2d 37; Matter of Celona v Royal Globe Ins. Co., 85 AD2d 635). We pass upon no further issue. Gulotta, J. P., Weinstein and Bracken, JJ., concur.