Parsa v. State

• Decision Date: 16 April 1984
• Citation: 100 A.D.2d 899,474 N.Y.S.2d 562
• Parties: Ismail PARSA, Appellant, v. The STATE of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 562

474 N.Y.S.2d 562

100 A.D.2d 899

Ismail PARSA, Appellant, v. The STATE of New York, Respondent.

Supreme Court, Appellate Division Second Department.

April 16, 1984.

Morris Weissberg, New York City (Robert J. Krengel, New York City, of counsel), for appellant.

Robert Abrams, Atty. Gen., Albany (Peter J. Dooley and Betsy Broder, Asst. Attys. Gen., of counsel), for respondent.

Before BROWN, J.P., and NIEHOFF, RUBIN and EIBER, JJ.

MEMORANDUM BY THE COURT.

In claims, inter alia, for damages for breach of contract, claimant appeals from an order of the Court of Claims, dated August 23, 1983, which granted the State of New York's motion to dismiss the claims for lack of jurisdiction.

Order modified, on the law, by deleting the provision which granted those branches of the State of New York's motion which sought dismissal of the first and third claims, and substituting therefor provisions denying those branches of the motion. As so modified, order affirmed, without costs or disbursements.

Claimant, a physician and professor of pathology at Downstate College of Medicine (Downstate), a facility of the State University of New York, seeks to recover sums allegedly paid by the Federal Government to the State in compensation for services performed by claimant for patients insured under the Medicare program. The State allegedly received these sums pursuant to an agreement, permissible under Federal regulations (see 42 CFR 405.480), whereby Downstate would bill the Federal Government for claimant's services and then pass on to him a portion of the money received, retaining the remainder to pay for certain overhead and fixed costs resulting from facilities and services provided without charge to claimant. Although this agreement was reduced to writing, it was never signed by Downstate and has never been approved by the State Comptroller. The claimant alleges, nevertheless, that the State has billed the Federal Government for claimant's services and has recovered payment therefor in the amount of $290,000.

The instant claims do not depend upon the unexecuted and unapproved contract, which is presented solely as evidence of the value of claimant's services. Rather, the first and third claims are in the nature of an action for money had and received. The Court of Claims erred in holding that such claims are not within its jurisdiction. Although framed in terms of equitable principles, an action for money had and received is considered an action at law, and was enforceable in common law courts (see Stone v. White, 301 U.S. 532, 534-535 57 S.Ct. 851, 81 L.Ed. 1265, Chapman v. Forbes, 123 N.Y. 532, 26 N.E. 3; Forest-Fehlhaber v. State of New York, 74 A.D.2d 272, 428 N.Y.S.2d 64). It is an action sounding in quasi contract (see Miller v. Schloss, 218 N.Y. 400, 407, 113 N.E. 337; Roberts v. Ely, 113 N.Y. 128, 20 N.E. 606), i.e., based upon a contract implied in law (see Matter of First Nat. City Bank v. City of New York Finance Admin., 36 N.Y.2d 87, 365 N.Y.S.2d 493, 324 N.E.2d 861), and as such is within the statutory jurisdiction of the Court of Claims (Court of Claims Act, § 9, subd. 2). Furthermore, actions against the State for money damages have been held to be within the exclusive jurisdiction of the Court of Claims (see Schaffer v. Evans, 57 N.Y.2d 992, 457 N.Y.S.2d 237, 443 N.E.2d 485; Bank of New York v. Tully, 84 A.D.2d 704, 443 N.Y.S.2d 832).

The State's further contention, that the claim cannot be maintained for failure to comply with section 112 of the State Finance Law, is also without merit. That section requires the approval of the State Comptroller before any State contract in excess of $5,000 can become effective. The purpose of this section is twofold to prevent the making of contracts for which there is no appropriation and to...