I respectfully dissent.
Downstate Medical Center (Downstate) employed physicians to serve as faculty members on a part-time basis and permitted them to practice independently when not teaching. Claimant sued the State University of New York (SUNY) for services rendered in 1974 pursuant to a contract entered into in 1969 between SUNY on behalf of Downstate and the Downstate Medical Group (Group) which was a partnership consisting of members of the departments of pathology, radiology, rehabilitation and medicine. The Group had operated under this contract, which was executed by the parties and approved by the Comptroller, until December 31, 1969. Thereafter, Dr. Becker, a member of the Group, and the other physicians in the department of radiology at Downstate formed a professional corporation, Joshua A. Becker, M. D. & Associates, P. C. (Corporation), but no new contract was executed by the Corporation and SUNY. The Corporation took over and discharged all the duties formerly fulfilled by those members of the Group who had been members of the department of radiology under the same terms as were contained in the 1969 agreement. The Corporation was paid without a new written contract, for three months from January to April of 1971. Thereafter, the Comptroller refused to honor vouchers *69submitted by the Corporation for professional services on the ground that formal approval of the existing arrangement by the Comptroller was required pursuant to section 112 of the State Finance Law and had not been given. Nevertheless, the Corporation continued to provide the services.
The trial court found that the Corporation could not recover under the theory of express contract because the Corporation had not succeeded to the rights of the Group and there was no written agreement entered into between the Corporation and SUNY approved by the Comptroller for the year 1974. Recovery was also found to be barred under the theory of implied contract since the Corporation’s and Downstate’s understanding to continue under the same terms as were contained in the 1969 agreement was never approved by the Comptroller’s office as required by section 112 of the State Finance Law. The Court of Claims rejected the Corporation’s other legal arguments based on subrogation, ratification, restitution, agency and estoppel but granted claimant judgment of $256,550.33 without interest prior to date of entry of judgment by applying its powers of equity incidental to its determination of the Corporation’s claim for a money judgment.
The State contends that the Court of Claims was without power to grant judgment to the Corporation because it is not entrusted with general equity jurisdiction. While we accept this proposition as correct, it is equally true that in determining claims for money damages against the State, the Court of Claims may grant incidental equitable relief (Gerzof v Sweeney, 22 NY2d 297). In Gerzof the Court of Appeals created an exception to the general rule that where work is done pursuant to an illegal contract, no recovery may be had by the vendor, either on the contract or in quantum meruit. In declining to impose the harsh remedy of forfeiture in Gerzof the court concluded that to deny recovery to the claimant would be so disproportionate a penalty for the failure to obtain the Comptroller’s approval as to "offend conscience”. The record supports the conclusion of the Court of Claims that the Corporation was encouraged to continue providing services by Downstate and the Comptroller’s failure to halt the anomalous situation that existed. There is no question that the services were rendered, nor is there a question as to their value. The equitable relief fashioned by the court was appropriate and within the ambit of its powers. I also find no merit in claimant’s contention that the court’s denial of interest on
*70the award prior to the entry of judgment constituted an abuse of discretion under CPLR 5001 (subd [a]). The particular facts of this case must be considered. The court found fault with claimant’s conduct and the consequent denial of interest was a proper exercise of its discretion (see Spadanuta v Incorporated Vil. of Rockville Centre, 20 AD2d 799).
The judgment should be affirmed.
Sweeney, J. P., Kane, Staley, Jr., and Herlihy, JJ., concur in Per Curiam opinion; Mikoll, J., dissents and votes to affirm in an opinion.
Judgment reversed, on the law and the facts, without costs, and claim dismissed without prejudice to any further proceeding the claimant may institute, if so advised.