State v. Uzzillia , 156 A.D.2d 261 ( 1989 )

Judgment, Supreme Court, New York County (Martin Stecher, J.), entered April 27, 1988, which granted plaintiff-respondent’s motion for summary judgment against defendant-appellant, individually and corporatively, in the total amount of $58,913.90, unanimously affirmed, without costs.

In this proceeding to recover Medicaid overpayments, based upon a final determination of the New York State Department of Health, the cause of action accrued not when payments were individually made, but only upon the final agency determination. We hold that the cause of action accrued only at that time because until either the Department’s audit or, if challenged by a nursing care provider, until the administrative final order confirming that audit, payments are only provisional (State of New York v Farragut Nursing Home, 116 Misc 2d 437, affd 99 AD2d 776; State of New York v Wachsman, 125 AD2d 390) or inchoate (see, Matter of Cortlandt Nursing Home v Axelrod, 66 NY2d 169, 178-179). The present action to recover those payments on the basis of the administrative determination that defendant-appellant had wrongfully been reimbursed was timely commenced.

Nor was plaintiff-respondent precluded from raising on this motion matters originally raised in its prior appeal, which had been voluntarily withdrawn without objection. An appeal which is voluntarily withdrawn is to be distinguished from an appeal in which an order of dismissal has been entered, and which would be the equivalent of an order of affirmance (cf, Bray v Cox, 38 NY2d 350, 355 [1976]). Concur—Kupferman, J. P., Sullivan, Carro, Rosenberger and Ellerin, JJ.