Mikoll and Yesawich, Jr., JJ.,
dissent and vote to affirm in the following memorandum by Mikoll, J. Mikoll, J. (dissenting). We respectfully dissent and vote to affirm. In our view, the determination of the master arbitrator that petitioner’s no-fault benefits be offset by workers’ compensation benefits awarded and paid over to petitioner’s employer is erroneous as a matter of law and without any rational basis. Under section 671 (subd 2, par [b]) of the Insurance Law, first-party benefits must be offset by “amounts recovered or recoverable * * * under state or federal laws providing * * * workmen’s compensation benefits”. Petitioner, however, did not receive any workers’ compensation benefits for the pre-July, 1980 periods of absence because he received his full salary by depleting his accrued vacation and sick leave benefits. The County of Broome, his employer, received workers’ compensation benefits for the money it paid petitioner pursuant to section 25 (subd 4, par [a]) of the Workers’ Compensation Law. These workers’ compensation benefits were not “amounts recovered or recoverable * * * under state or federal laws providing *970* * * workmen’s compensation benefits” (Insurance Law, § 671, subd 2, par [b]). The master arbitrator’s offset ruling places petitioner in the position of having given up his sick leave and vacation pay in return for only a token no-fault payment. The injured worker should not thus be turned into a self-insurer for such portion of his economic loss (see Matter of Granger v Urda, 44 NY2d 91, 99; Grello v Daszykowski, 44 NY2d 894). Such a result is not only unreasonable, but contrary to the intent of the law. This situation is analogous to that found in Grello v Dazykowski (supra), where workers’ compensation benefits, which were ultimately credited to an insurance carrier and not to the employee, were not considered as “amounts recovered or recoverable” by the employee for purposes of the offset provided in section 671 (subd 2, par [b]) of the Insurance Law.. In Grello, the carrier recouped workers’ compensation benefits already paid through the enforcement of a lien (Workers’ Compensation Law, § 29), and here the workers’ compensation carrier (the employer, Broome County) recouped benefits which it never had to pay. In both cases, the injured employee did not reap the benefits of workers’ compensation. Similarly, then, the no-fault provider herein should not be permitted to offset its obligation to petitioner. [113 Misc 2d 1080.]