Opinion
December 28, 1981
In an action to recover damages predicated upon Medicaid overpayments, plaintiff appeals (1) as limited by its notice of appeal and brief, from so much of an order of the Supreme Court, Suffolk County (Aspland, J.), dated August 25, 1980, as, in part, denied its motion, pursuant to CPLR 3217, to voluntarily discontinue its action without prejudice, and (2) as limited by its brief, from so much of a further order of the same court dated September 8, 1980, as upon granting reargument and renewal, adhered to its original determination. Matter remitted to Special Term for further proceedings consistent herewith and in the interim appeals held in abeyance. Special Term is to file its report with all convenient speed. As in the companion case of State of New York v Notey ( 85 A.D.2d 689), it is necessary to remit the instant matter to Special Term in order to determine the intent of the parties to the plea agreement between the State of New York and Anton, Richard and Thomas Notey. As in that case, it is impossible on the face of the plea agreement alone to determine as a matter of law whether the agreement includes a commitment from plaintiff to forego recoupment by administrative process. It is also impossible to determine on the agreement's face whether the defendant nursing homes, and the individual partners, are incidental or intended beneficiaries to any commitment made by the State of New York. Hopkins, J.P., Damiani, Gibbons and Weinstein, JJ., concur.