Summary
allowing common law claims against manufacturer whose product aggravated injury where manufacturer was a noncovered person
Summary of this case from Walsh v. Durkin Bros., Inc.Opinion
Decided September 2, 1982
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, HAROLD R. SODEN, J.
Richard T. Horigan for appellant.
Thomas M. Hirschen for respondent.
MEMORANDUM.
On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 N.Y.CRR 500.2 [b]), the order of the Appellate Division should be reversed, with costs, the motion to vacate the lien denied and the question certified answered in the affirmative.
A no-fault insurer which pays first-party benefits to a covered person injured through the use or operation of a motor vehicle has a lien for medical expenses and lost wages against a recovery from the manufacturer of a defective prosthetic device installed as a result of the injury. Though not a joint tort-feasor the manufacturer is a noncovered person whose product aggravated the personal injury for which the insurer was required to pay first-party benefits and, under the provisions of subdivision 2 of section 673 of the Insurance Law, the insurer, therefore, has a lien for such payments against any recovery from the manufacturer ( Aetna Ins. Co. v Springsteen, 78 A.D.2d 532).
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, FUCHSBERG and MEYER concur in memorandum; Judge GABRIELLI taking no part.
On review of submissions pursuant to rule 500.2 (b), order reversed, etc.