The "made whole" doctrine or equitable subrogation is alive in NY. See, Fasso v. Doerr, 12 NY3d 80 (2009) and cases thereafter. The extent to which it may appy in your case is not an easy question to answer based solely on the information provided. You should discuss Fasso and GOL Sec. 5-335 with your attorney to determine if the carrier's subrogation rights still exist. Good luck.
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I agree with Jeff Adams. Any competent personal injury attorney should be able to apply the "made whole" doctrine to the facts of your case to reduce or eliminate any subrogation claim. Since you are represented it would not be appropriate for attorneys on Avvo to second guess your lawyers' judgment.
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