
    In the Matter of Patricia Kitchell, Petitioner, v Philip L. Toia, as Commissioner of the New York State Department of Social Services, et al., Respondents.
   Petition unanimously granted, without costs, to the extent of modifying the determination in accordance with the following memorandum: In this article 78 proceeding, transferred here under CPLR 7804 (subd [g])> petitioner seeks review of a decision after fair hearing by respondent Toia which upheld a determination of the Chautauqua County Department of Social Services. Respondents determined to reduce petitioner’s monthly grant under the Aid to Families with Dependent Children program (AFDC) by $56.10 in order to provide for recoupment of overpayments in the amount of $894. The claimed overpayments were the result of three separate transactions: (1) excessive grants of $140 per month for three months as a result of administrative error; (2) petitioner’s expenditure, without agency knowledge or approval, of a $435 Federal income tax refund; (3) petitioner’s expenditure, without agency knowledge or approval, of a State income tax refund of $39. Our review of an agency decision after a fair hearing is, of course, limited to determining whether there is substantial evidence in the record to support the administrative action and to insure against an arbitrary or capricious exercise of authority. (Matter of Pell v Board of Educ., 34 NY2d 222; State Div. of Human Rights v New York State Drug Abuse Control Comm., 59 AD2d 332; Matter of Nigro v Board of Trustees of Vil. of Alden, 57 AD2d 695). The evidence that petitioner was inadvertently overpaid in the amount of $420 is unrefuted. Also there is substantial evidence to support the finding that she improperly withheld information concerning both Federal and State income tax refunds and that she spent such sums for various personal items. Respondents concede that they may not recover $295.41 which is that portion of petitioner’s Federal tax refund which constitutes earned income credit. Additionally, there appears to have been an error with respect to her State tax refund in that it was $31.40 rather than $39. With those modifications, respondent is entitled to recoupment in the amount of $590.99. (Art 78 proceeding transferred by order of Chautauqua Supreme Court.) Present—Moule, J. P., Dillon, Hancock, Jr., Denman and Witmer, JJ.  