
    Eli Lewis et al., Respondents-Appellants, v Donald D. Goldberg, Appellant-Respondent.
   In an action to recover moneys under an agreement, the parties cross-appeal from an order of the Supreme Court, Queens County, dated February 23, 1976, which (1) denied defendant’s motion to dismiss the complaint for failure to state a cause of action, (2) failed to grant defendant summary judgment and (3) denied plaintiffs’ cross motion for summary judgment. Order affirmed, with $50 costs and disbursements to plaintiffs. The complaint sets forth a legally sufficient cause of action for repayment by defendant, pursuant to the parties’ agreement, of charges paid him by plaintiffs for rehabilitative services furnished to their Medicare patients, which charges were subsequently disallowed by the fiscal intermediary upon final audit (thus, plaintiffs would not be reimbursed by the government). However, the existence of triable issues of fact, raised by the pleadings and affidavits at Special Term, precludes the grant of summary judgment to either party. Gulotta, P. J., Hopkins, Latham, Cohalan and Hawkins, JJ., concur.  