New York State Court of Claims

New York State Court of Claims

ANESTHESIA GROUP v. THE STATE OF NEW YORK, #2002-015-264, Claim No. 103211, Motion No. M-64890


Defendant's summary judgment motion seeking dismissal of claim granted on defenses that there is no contract between the parties and that if an implied contract were found to exist it would be barred by the State Finance Law § 112 (2) since contract exceeded $15,000 in value.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Gleason Dunn, Walsh & O'SheaBy: Frank C. O'Connor III, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: C. Michael Reger, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 26, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant's motion for summary judgment seeking dismissal of the claim as a matter of law based upon the two affirmative defenses set forth in the answer is granted. The answer asserts as defenses that there is no contract, express or implied, between the claimant and defendant for the payment of medical services rendered by the claimant to Department of Correctional Services (DOCS) inmates and that even if an implied contract were found to exist recovery would be barred under section 112 (2) of the State Finance Law which requires that contracts exceeding $15,000.00 be approved by the Comptroller and filed in his or her office.

The amended claim filed on December 26, 2000 seeks to recover $165,075[1] plus interest for what it characterizes as the customary and reasonable value of anesthesia services[2] which claimant grouped chronologically in the claim by dates of service as follows: March 31, 1999 through September 20, 1999 in the amount of $50,160; September 27, 1999 through June 7, 2000 in the amount of $63,290; June 15, 2000 through December 19, 2000 in the amount of $68,290 (see, defendant's Exhibit A). All of the anesthesia services performed during the above noted periods and for which recovery is sought were performed at Albany Medical Center South Clinical Campus (formerly Child's Hospital) and were rendered to inmates housed in facilities within an area designated as the northeastern corridor (Coxsackie Region). That area stretches from Sullivan County to Clinton County and contains approximately 24 correctional facilities housing between 19,000 and 21,500 inmates. The claim includes charges for 375 specific instances in which medical services ranging in amount from $300.00 - $1,740.00 per service were provided to inmates housed within the northeastern corridor. The defendant does not dispute that the anesthesia services were provided nor does it assert that the amounts sought in the claim are unreasonable. It alleges instead that the State of New York is not obligated by express or implied contract to pay for the services and that recovery is barred by State Finance Law § 112 (2) since the value of the services as presented in the claim exceeded $10,000 prior to July 1, 2000 and exceeded $15,000 after that date[3].

Beginning in 1994, DOCS initiated a program to obtain specified health care services for inmates through private managed health care companies. Bids were received pursuant to requests for proposals and contracts for such services were awarded. The contracts provided for a reimbursement structure based upon a per capita fee paid by the State to the managed health care company with total costs determined by the number of inmates in the specific region to be served under the contract (e.g., northeastern corridor) and a flat fee paid to the company to administer the inmate claims program.

In 1996 a contract to provide managed health care services for approximately 19,000 inmates housed in correctional facilities within the northeastern corridor (see, defendant's Exhibit C) was awarded pursuant to the RFP/bid process to United Correctional Managed Care, Inc. (United). That contract placed the responsibility to obtain medical service providers, including medical specialty providers in areas such as anesthesiology, upon the managed care company. It further required the managed care company to create a network of health care providers including specialists to perform the required inmate health care services on terms and at rates negotiated and agreed upon between the individual network providers and the managed care company without DOCS' involvement or approval (see, Exhibit C, p. 3). Teresa Wuerdeman, Director of the New York State Department of Correctional Services Division of Health Care Services, alleges in paragraph 3 of her affidavit in support of the defendant's motion that reimbursement rates were regarded as proprietary contract matters between the managed care company and the individual providers and that information pertaining thereto was not shared with DOCS.

The claimant alleges that it never entered into a network provider agreement or any other agreement with United or with Correctional Medical Services, Inc., (CMS) the successor managed health care company which assumed United's responsibilities and obtained the proceeds payable to United under an assignment and assumption agreement executed by the parties and approved by DOCS and the Comptroller in April 1998 (see, defendant's Exhibit D). While it may be true that claimant never entered into a contract with either United or CMS regarding payment for services rendered to DOCS inmates, claimant provided its services without a contract and submitted claims for such services to United beginning in 1996 and to CMS beginning in April 1998 (see CMS notification letter of April 13, 1998, defendant's Exhibit G). Upon submission and processing of the claims claimant received payments from both managed care companies in an amount less than its usual and customary charges.

Despite the receipt of payments from the managed health care companies since at least 1996, it appears that claimant's first notification to DOCS regarding its dissatisfaction with the payments received was a letter dated October 28, 1998 from claimant's attorneys to Dr. Lester Wright, Associate Commissioner, Health Services, New York State Department of Correctional Services in Albany (see, defendant's Exhibit G). That letter noted the absence of a contract with United, alleged improper payments on claims processed by United for less than claimant's usual and customary rates and alleged the non-payment of invoices dating back to January 1997. Claimant further acknowledged therein that it had recently been contacted by CMS and offered a payment from CMS of approximately 15% of the then outstanding medical charges. The letter informed DOCS that a notice of intention to file a claim had been filed[4] with the New York State Court of Claims and suggested that payment terms with regard to the claimed amounts set forth in the notice of intention could be negotiated with claimant's attorneys. Importantly, the letter advised DOCS that despite the absence of an agreement or contractual arrangement with CMS regarding care and treatment of inmates presented for anesthesia at St. Peter's or Child's Hospital (later known as Albany Medical Center South Clinical Campus) claimant would continue to provide anesthesia care to inmates presented for treatment at these facilities. It concluded with a statement that claimant "will continue to invoice the Department for the usual and customary charges associated with the providing of anesthesia care and will look to the Department for payment in full." The final sentence stated, "Unless otherwise advised we will continue to provide statements to your agent, CMS, in accordance with the instructions previously given to AGA [claimant] by the several Department of Corrections' [sic] facilities."

Claimant's counsel's letter to Dr. Wright appears to have gone unanswered. A March 10, 1999 letter from Kathleen Naughter, claimant's Practice Administrator to Valerie Schnefke, Vice president and Controller of CMS (see defendant's Exhibit G) again noted the lack of a contract between claimant and CMS and referenced claims for services rendered during the period October 3, 1998 through February 28, 1999 which are not part of the instant claim. It also contained an oblique reference to earlier instructions from unnamed representatives of the Department of Correctional Services regarding the submission of claims to CMS as did a letter of the same date providing a copy of the Naughter letter to Dr. Lester Wright. CMS responded to that letter by correspondence dated April 1, 1999 (defendant's Exhibit G) in which claimant was advised that in the absence of a contract, and until settlement negotiations were completed, the claims for the period of October 3, 1998 through February 28, 1999 would be processed at New York State Medicaid rates. The letter suggests that contract negotiations between claimant and CMS were either ongoing or anticipated at the time of that letter.

The record also contains claimant's counsel's letter to George Glassanos, Deputy Counsel to DOCS dated June 28, 1999 which again recounts the absence of a contract between claimant and CMS and advises the recipient of continuing difficulties encountered by claimant in its attempt to resolve outstanding medical claims having a purported balance in excess of $200,000.00. The letter also indicated that services being provided to DOCS inmates continued to be billed at AGA's usual and customary rate ($60 per unit) as opposed to claimant's normal negotiated rate ($45 per unit) and that CMS was continuing to make "unacceptable payments at the rate of $5 per unit." This letter also appears to have gone unanswered.

The sur-reply affidavit of Kathleen M. Naughter sworn to April 29, 2002 (allowed by the Court to address a new matter allegedly raised for the first time in the reply affidavit of Teresa Wuerdeman sworn to April 15, 2002) indicated that Claim No. 102249 involving claimant's services rendered during the period April 8, 1998 through March 30, 1999 was settled and that such settlement included outstanding claims pre-dating April 8, 1998.

The rules applicable to the determination of a motion for summary judgment were clearly stated by the Court of Appeals in Alvarez v Prospect Hosp., 68 NY2d 320, 324:
As we have stated frequently, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, supra, at p 853). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, supra, at p 562).
The proponent of a summary judgment motion may only meet its initial burden through the submission of evidentiary proof in admissible form (Rifenburgh v Wilczek, 2002 WL 826797 [N.Y.A.D. 3 Dept]).

In support of the motion the defendant has submitted a copy of the pleadings; an affidavit by defense counsel; affidavit of Teresa Wuerdeman, Assistant Director of Health Care Services for NYSDOCS; the transcript of the examination before trial of Kathleen M. Naughter, claimant's Practice Administrator, copies of an agreement between NYSDOCS and United Correctional Managed Care, Inc.; a renewal-assignment-assumption agreement between United Correctional Managed Care, Inc. and Correctional Medical Services, Inc. with the consent of DOCS and the State Comptroller; and related correspondence.

The proof submitted in support of the motion is sufficient to establish that during the period March 31, 1999 to December 2000 claims for medical specialty services (anesthesia) rendered to DOCS inmates housed in the northeastern corridor were the responsibility of Correctional Medical Services (CMS) as assignee and successor by assumption to United Correctional Managed Care, Inc. pursuant to a then-existing agreement between DOCS and United. The proof, including the verified claim, further demonstrates that the value of claimant's specialty medical services for the period set forth in the claim exceeded the threshold amount requiring contract approval by and filing with the New York State Comptroller pursuant to State Finance Law § 112 (2) and that claimant never obtained such required approval.

Claimant in opposition to the motion offered the affirmation of Patrick A. Fantauzzi, M.D. President of Anesthesia Group of Albany, P.C. and Chief of Anesthesia at Albany Medical Center South Clinical Campus (formally Child's Hospital); information sheets listing services rendered by AGA to DOCS inmates for service dates 4/1/99 - 1/31/01; affidavit of Kathleen M. Naughter, AGA's Practice Administrator; copy of agreement between United Health Care Medical, P.C. and Albany Medical Center dated February 23, 1996 and January 31, 1996; excerpts of bylaws, rules and regulations of Medical Staff of Albany Medical Center South Clinical Campus; an unsigned letter with no inside address from CMS dated April 13, 1998; letters dated March 10, 1999 from AGA's Practice Administrator to Dr. Lester Wright, Associate Commissioner, Health Services NYSDOCS and to Valerie Schnefke, Vice President/Controller CMS; responsive letter of Valerie Schnefke dated April 19, 1999; affirmation of claimant's attorney; copies of defendant's discovery responses; a transcript of the examination before trial of Teresa Wuerdeman dated December 11, 2001 and an unpublished decision dated November 12, 1980 of the Honorable Robert M. Quigley, Judge of the Court of Claims Dr. Joan Sobel v State of New York, Claim No. 62713.

Defendant submitted a reply affidavit of Teresa Wuerdeman sworn to April 15, 2002 with exhibits and claimant submitted a sur-reply affidavit of Kathleen Naughter sworn to April 29, 2002.

Although the amended verified claim (defendant's Exhibit A) filed with the Court on December 26, 2000 asserts but a single cause of action for breach of an implied contract, claimant's counsel contends in his memorandum of law that claimant seeks to recover on two separate implied contract causes of action, the first a contract implied in fact based upon the conduct of the parties and the second an implied contract at law for money had and received. This contention differs from the allegations contained in the amended verified claim which at paragraph "24" states that recovery is sought in contract and quantum meruit  and not for money had and received. These are not distinctions without differences. On the facts of this case, however, recovery may not be had on an implied contract in fact, in quasi contract (implied at law) for money had and received or in quantum meruit for the following reasons.

As to claimant's attempt to hold defendant liable under a theory of quantum meruit, it has been said that "[q]uantum meruit recovery ' "rests on a narrow exception to the rule that a party may not expect compensation for a benefit conferred gratuitously upon another" (Trott v Dean Witter & Co., 438 F Supp. 842 affd 578 F2d 1370)' " Moors v Hall, 143 AD2d 336,337). Further the appellate courts generally agree that "[i]n order to make out a claim in quantum meruit, a claimant must establish (1) the performance of the services in good faith, (2) the acceptance of the services by the person to whom they are rendered, (3) an expectation of compensation therefor, and (4) the reasonable value of the services" (Heller v Kurz, 228 AD2d 263, 264 quoting Moors v Hall, supra at 337-338; see also, Syracuse Community Health Ctr. v State of New York, 281 AD2d 939). It has further been noted that the expectation of compensation must be reasonable (see, Heller v Kurz, supra at 265). In fact, in Moors v Hall, supra at 338 the Appellate Division, Second Department, indicated that "[t]he question of whether a party had a reasonable expectation of compensation for services rendered is a matter for the trier of fact to determine based on the evidence before it."

On the instant motion for summary judgment, however, claimant has offered no evidence regarding its reasonable expectation of compensation from the defendant. In fact, what little was offered consists solely of allegations that the inmates were presented for surgery at Child's Hospital (n/k/a/ Albany Medical Center Hospital South Clinical Campus) by uniformed correction officers and that unnamed personnel at unspecified DOCS facilities instructed the claimant to bill United (later CMS) for the services provided. Claimant offered no proof whatsoever that any identifiable individual with any semblance of authority at DOCS acknowledged even potential liability for the payment of claimant's medical services. The Court notes that claimant's letters to DOCS Associate Commissioner of Health Services were unanswered. Even viewed in the most liberal light available claimant's attempt to base liability upon DOCS transportation of inmate patients to and from the facility where claimant's physicians and nurse anesthetists provided their services and the direction to bill a third party (United/CMS) by unnamed individuals at unspecified DOCS correctional facilities cannot be found to give rise to a reasonable expectation of payment by the defendant or to create a material issue of fact in this regard.

Furthermore, the Fourth Department in Syracuse Community Health Ctr. v State of New York, 281 AD2d 939, supra found that the claimant therein had failed to establish that the defendant had accepted any of the pharmacy services rendered to Medicaid-eligible patients. With regard to the acceptance of services, the claimant herein has similarly failed to prove that the defendant, as opposed to the managed care company responsible under its contract with DOCS to provide inmate medical care, accepted the claimant's services for the purposes of satisfying the second element of a cause of action in quantum meruit as set forth above in Heller v Kurz, supra.

Moreover, the Court in Syracuse Community Health Ctr. , supra at 940 also correctly noted "that promissory estoppel is not available against a governmental entity."

Claimant's attempt to predicate liability against DOCS on a statutory basis pursuant to certain provisions of the Correction Law likewise fails. Correction Law § 23(2) and (3) grant the Commissioner of Correction discretionary authority to issue orders permitting inmates to receive medical diagnosis and treatment at outside hospitals under certain prescribed circumstances and further provide that transportation costs in connection therewith shall be paid from funds appropriated to the department for that purpose. Those subdivisions, however, have no relationship to the authorization of payment by the Commissioner to the providers of medical services such as urged here. Nor can Correction Law § 70 (2) (c) regarding the establishment and maintenance of an institution or program of treatment for "the health and safety of every person in the custody of the department" be deemed authorization for payment of medical services nor should such section be deemed to have given rise to a reasonable expectation of payment for services rendered by claimant. Finally, while Correction Law § 70 (8) provides authority for the Commissioner to enter into contracts with professionals to render services to any correctional facility within amounts appropriated therefor, claimant has not demonstrated here that any such contract existed, nor has claimant shown that funds were appropriated to DOCS to pay to providers of separate medical speciality services outside the approved managed care contracts in general or for the provision of services by the claimant in particular.

The defendant on the other hand has demonstrated on the motion that the $17 million in appropriated funds were designated for the provision of medical services to inmates through a managed care company whose responsibilities included recruiting and negotiating medical contracts for, inter alia, the provision of necessary medical specialty services to inmates housed in the State's northeastern corridor. The fact that claimant never entered into such a contract with United or CMS does not now require the defendant to pay for those services. Thus, it appears that there is no statutory basis for liability of the defendant on this claim.

Claimant for the first time on this motion argues that it may recover on a quasi contract theory of money had and received. Even viewed liberally the claim does not allege such a basis for recovery but, since both parties have offered argument regarding that theory, the Court will address the issue. Although an action for money had and received depends upon equitable principles it has been recognized as an action at law over which the Court of Claims has jurisdiction (see, Parsa v State of New York, 64 NY2d 143). In fact, in Sarbro 1X v State of New York Off. of Gen. Servs., 229 AD2d 910, 911 the Appellate Division, Fourth Department, in reversing the Court of Claims with regard to the Court's jurisdiction over quasi contract actions such as unjust enrichment or money had and received stated that "[t]o hold otherwise would leave claimant without a remedy because it is barred from seeking money damages from defendant in Supreme Court."

While this Court has jurisdiction in quasi contract to entertain an action for money had and received no such cause of action exists under the circumstances herein. The essential elements of a cause of action for money had and received include: "(1) the defendant received money belonging to [the claimant] . . . , (2) the defendant benefited from receipt of the money, and (3) under principles of equity and good conscience, the defendant should not be permitted to keep the money" (Witbeck, Matter of , 245 AD2d 848; Brewer v State of New York, 176 Misc 2d 337, 344).

The Court of Appeals in Parsa v State of New York, 64 NY2d 143, 148 offered the following explanation of a cause of action for money had and received which it categorized as a species of implied contract:
The second type, the type claimed here for money had and received is a contract implied in law. Although the action is recognized as an action in implied contract, the name is something of a misnomer because it is not an action founded on contract at all; it is an obligation which the law creates in the absence of agreement when one party possesses money that in equity and good conscience he ought not to retain and that belongs to another (Miller v Schloss, 218 NY 400, 406-407). It allows plaintiff to recover money which has come into the hands of the defendant 'impressed with a species of trust' (see Chapman v Forbes, 123 NY 532, 537) because under the circumstances it is ' "against good conscience for the defendant to keep the money" ' (Federal Ins. Co. v Groveland State Bank, 37 NY2d 252, 258, quoting from Schank v Schuchman, 212 NY 352, 358). The remedy is available 'if one man has obtained money from another, through the medium of oppression, imposition, extortion, or deceit, or by the commission of a trespass' (Miller v Schloss, supra p 408). The action depends upon equitable principles in the sense that broad considerations of right, justice and morality apply to it, but it has long been considered an action at law (see Roberts v Ely, 113 NY 128; Diefenthaler v Mayor of City of N.Y., 111 NY 331, 337). An action for money had and received has been permitted against a public body in instances where plaintiff has paid money by mistake, money has been collected for an illegal tax or assessment, or property is erroneously taken or withheld by a public official (McDonald v Mayor of City of N.Y., 68 NY 23, 29, supra, see, e.g., Niagara Mohawk Power Corp. v City School Dist., 59 NY2d 262; and New York R.T. Corp. v City of New York, 275 NY 258, 264, affd 303 US 573 [recovery of taxes paid under compulsion of an unconstitutional tax levy]; County of Oneida v First Citizens Bank & Trust Co. 264 App Div 212 [action by a county and its treasurer against a depositor bank to recover funds deposited in a self-insurance plan which were fraudulently paid to third parties]).

The Court of Appeals in Parsa, (at 149) further held that:

The action is not barred by section 112 of the State Finance Law because claimant is not seeking to enforce an agreement; he is seeking to recover funds from the State which he alleges belong to him and which the State is wrongfully withholding from him.
The Parsa Court then concluded (at 151):
[T]he State has not received nor is it holding sums of money to which claimant is entitled any more than any of the several physicians or therapists are entitled to the itemized sums listed on the hospital's bill for various services they supplied to in-patients and which, in the aggregate, constituted the hospital's total charge. Inasmuch as claimant cannot establish that the State is wrongfully withholding sums from him to which he is entitled under the Federal statute, he has failed to state a cause of action for money had and received.
The instant claim does not contain any allegation that DOCS received money belonging to the claimant nor may such an allegation be countenanced on the facts of this case. The money which the Legislature appropriated for DOCS inmate medical care was initially paid to United and during the time at issue in this claim was paid to CMS pursuant to a written contract approved by the State Comptroller and assumed by CMS with the Comptroller's approval. Such monies were not paid to or received by DOCS for purposes of payment of claimant's services or any other specific medical specialty services.

Because it was the managed care company, not DOCS, which received the appropriated funds it cannot be said that DOCS either benefitted from the receipt of the funds or that DOCS is or was in possession of funds to which claimant is or was entitled.

Even assuming, arguendo, that the instant claim states a cause of action in implied contract for money had and received such cause of action must be dismissed for claimant's failure on the motion to offer proof of its necessary elements or to create a question of fact in that regard.

As noted above the Court of Appeals in Parsa, supra, stated that on a contract implied in law for money had and received claimant is not seeking to enforce an agreement and that such a cause of action is not therefore barred by section 112 of the State Finance Law. However, the Court in that case also found that a contract implied in fact is subject to section 112. Defendant has argued on this motion that the claimant's cause of action for an implied in fact contract should be dismissed on the grounds that recovery is barred by section 112 (2) of the State Finance Law. That section in relevant part, provides:
Before any contract made for or by any state agency, department, board, officer, commissioner or institution, shall be executed or become effective, whenever such contract exceeds ten thousand dollars in amount it shall first be approved by the comptroller and filed in his or her office . . . [5]

Claimant in opposition argues that section 112 does not apply to the instant claim. Counsel urges the Court to consider the claim not as one seeking $165,075.00 but rather 375 separate contracts for services valued between $300.00 and $1,740.00 with most valued at less than $1,000.00. Although the amended verified claim included an attachment separately listing pertinent information regarding the rendition of service to each individual inmate, the services set forth in the amended verified claim filed with the Court were categorized by dates of service and submitted in three groups having stated values of $50,160.00, $63,290.00 and $68,290.00 respectively. Claimant now asks the Court to ignore the very language of the amended verified claim and to view the individual medical claims as 375 separate contracts between the claimant and defendant in order to escape the application of State Finance Law § 112. Claimant has cited no authority for such a view and the Court has found none on its own. Rather it appears to this Court that the wealth of available authority weighs in favor of barring recovery on an implied contract involving an amount equal to or greater than the threshold pursuant to section 112 (2) of the State Finance Law.

Judge Blinder of this Court in Lachica v State of New York, 139 Misc 2d 772, 774, found that it would "be an anomaly to hold that section 112 of the State Finance Law is inapplicable to the alleged contract and, at the same time, allow claimant to maintain her claim against the State of New York for $85,000.00 in damages".

In Becker v State of New York, 65 AD2d 65, affd 48 NY2d 867, a case similar on its facts to the instant case, the claimant apparently did not dispute the application of section 112 of the State Finance Law. Nonetheless the Appellate Division, Third Department, still thought it appropriate to mention in its decision that the absence of the Comptroller's approval of a contract [under section 112] with a party other than the claimant corporation but under whose terms claimant had been paid (similar to DOCS' agreement with United herein) precluded recovery based on implied contract. The Court of Appeals in its memorandum decision in Becker affirmed but noted that, as in the instant case, no agreement between appellant [Becker] and the State University had been approved by the Comptroller.

The same result is reached here relative to claimant's cause of action alleging a contract implied in fact. While it is true that "[w]hether an implied- in- fact contract was formed and, if so, the extent of its terms involve factual issues regarding the intent of the parties and the surrounding circumstances" (Watts v Columbia Artists Mgt., 188 AD2d 799, 801), the claimant herein has failed to raise a triable issue as to the existence of a contract implied in fact. A contract may not be implied where the facts are inconsistent with its existence (Lubeck Realty v Flintkote Co., 170 AD2d 800) or where a party has conducted itself in such a manner that its assent may not reasonably be inferred under the circumstances (LaVine v LaVine, 148 AD2d 926).

The facts herein are not seriously disputed. The claimant provided services to inmates presented for treatment at the Albany Medical Center South Clinical Campus/Child's Hospital. Claimant then billed United/CMS for the services rendered and was paid by the managed care entities at a rate less than its usual and customary charges. Claimant did not withhold its services upon learning the rates at which its services would be reimbursed but, rather, continued to provide the services while it negotiated with CMS relative to the outstanding charges it alleged were due. There is no evidence that the defendant interacted with the claimant in any way relative to the provision of services or the amount at which services provided would be reimbursed. Instead, the record establishes that the claimant recognized at every juncture that services were to be billed to the managed care companies and discussions regarding the level of reimbursement were to be addressed through the managed care companies. The simple act of sending correspondence to the Department relating the billing controversy between the claimant and the managed care entities does not act to unilaterally draw the defendant into a matter in which it otherwise had no involvement, whether direct or indirect. The only action allegedly taken by the "State" was the transport of inmates by correction officers and the direction received from unnamed individuals at unspecified DOCS facilities that all bills for services rendered by the claimant should be submitted to United/CMS for payment; an act inconsistent with the assent necessary to establish a material issue of fact regarding the existence of a contract implied in fact.

The Court finds that the claimant has failed to raise a material issue of fact requiring a trial regarding the existence of a contract implied in fact. Even had such a showing been made the Court would rely upon the claimant's own presentation of its claim for money damages in determining the applicability of State Finance Law § 112(2). A contrary finding would frustrate the purposes of the statute and the public policy it embodies. As stated by the Court of Appeals in Parsa, supra, 147:

A party contracting with the State is chargeable with knowledge of the statutes which regulate its contracting powers and is bound by them (Belmar Contr. Co. v State of New York, 233 NY 189, 194). Moreover, the State's acceptance of benefits furnished under a contract made without authority does not estop it from challenging the validity of the contract or from denying liability pursuant to it (Becker & Assoc. v State of New York, 48 NY2d 867, affg, 65 AD2d 65; see, also, Seif v City of Long Beach, 286 NY 382; McDonald v Mayor of City of N.Y., 68 NY 23). Even though a promise to pay may be spelled out from the parties' conduct, a contract between them may not be implied to provide 'rough justice' and fasten liability on the State when applicable statutes expressly prohibit it (see, Lutzken v City of Rochester, 7 AD2d 498). The result may seem unjust but any other rule would completely frustrate statutes designed to protect the public from governmental misconduct or improvidence. The contractor's option is to withhold his services unless an agreement is executed and approved as the statute requires.
Defendant's motion is granted and the claim is hereby dismissed.

June 26, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated March 19, 2002;
  2. Affidavit of Teresa Wuerdeman sworn to March 18, 2002;
  3. Affidavit of C. Michael Reger sworn to March 19, 2002 with exhibits;
  4. Affirmation of Patrick A. Fantauzzi dated April 10, 2002 with exhibit;
  5. Affidavit Kathleen M. Naughter sworn to April 10, 2002 with exhibits;
  6. Affirmation of Frank C. O'Connor, III dated April 10, 2002 with exhibits;
  7. Affidavit of Teresa Wuerdeman sworn to April 15, 2002 with exhibit;
  8. Affidavit of Kathleen M. Naughter sworn to April 24, 2002.

[1]This figure reflects payments received by claimant in the amount of $16,665 against bills submitted in the total amount of $181,740.
[2]Including the services of licensed physicians (anesthesiologists) and certified registered nurse anesthetists (see, paragraph 1 of affidavit of Kathleen Naughter, Claimant's Exhibit 1).
[3]See, L 2000 ch 95 § 6.
[4]Required filing with the Court of a notice of intention to file a claim was eliminated effective August 2, 1995 by L 1995, ch 466 § 2.
[5]The ten thousand dollar threshold amount was changed during the time period at issue here from ten to fifteen thousand dollars by L 2000 ch 95 § 6 effective July 1, 2000. The change does not effect this decision.