State v. Right

Appeal from an order of the Supreme Court at Special Term (Connor, J.), entered March 13, 1985 in Albany County, which, inter alia, denied plaintiff’s motion for summary judgment.

Plaintiff seeks to recover $6,215 in alleged overpayments made to defendant, a podiatrist, for services rendered at Letchworth Village between August 3, 1977 and June 30, 1980. During the period in question defendant charged and was paid $50 for each three-hour clinic session. Plaintiff contends that this payment was an error and that, pursuant to written agreement, defendant was only entitled to $35 per three-hour session.

A review of the record reveals that Special Term correctly found the existence of factual questions "as to the understanding of the parties at the time the contract for defendant’s services was entered into, as to the rate of payment to be made for defendant’s clinical visits”. The fact that defendant submitted bills for almost three years for $50 per session and was paid this amount creates a question of fact with respect to the agreement of the parties as to compensation (cf. 21 NY Jur 2d, Contracts, § 124, at 531; Richardson, Evidence § 609, at 605 [Prince 10th ed]). The order should, therefore, be affirmed.

Order affirmed, with costs. Kane, J. P., Casey, Mikoll and Levine, JJ., concur.