Judgment unanimously affirmed, without costs.
Memorandum:
We affirm for reasons stated in the memorandum decision at Special Term (Lynch, J.). We add that, insofar as respondent Niagara Mohawk's counterclaim for a refund of taxes paid for the tax year 1982-1983 may be considered a plenary action for money had and received, it fails to state a cause of action. Payment under protest, which is an essential element of such an action, is not alleged (see
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