An award of attorneys' fees must be authorized by agreement between the parties, by statute, or by court rule

In a proceeding pursuant to CPLR Article 78 to review a determination of the New York City Department of Education [DOE] which denied the Petitioner's request for a religious exemption from a COVID-19 vaccine mandate, DOE appealed an order of the Supreme Court which:

1. Granted the Plaintiff's petition;

2. Directed that the Petitioner be reinstated to her full employment status; and

3. Awarded the Petitioner $90,555.63 in back pay; and

4. Awarded the Petitioner $31,095 in attorneys' fees.

In response to the COVID-19 epidemic the  New York City Commissioner of Health and Mental Hygiene issued a mandate requiring all DOE employees to provide proof of COVID-19 vaccination. Such mandate was subsequently amended to provide that [nothing] in this [mandate] shall be construed to prohibit any reasonable accommodations otherwise required by law."

Pursuant to an arbitration award between DOE and the Petitioner's union Petitioner was placed on leave without pay while remaining eligible for health benefits and "given the option to comply with the vaccine mandate, retire, resign, or remain on unpaid leave with health benefits until September 6, 2022". Petitioner elected to extend her leave without pay through September 6, 2022 and signed a release and waiver to that effect which provided, in part, "I understand that if I have not returned by September 6, 2022, I shall be deemed to have voluntarily resigned and knowingly waive my rights to challenge such resignation."

On August 19, 2022, Petitioner submitted a request for a religious exemption from the vaccine mandate which DOE denied Petitioner's  request, finding that her application failed to meet the criteria for a religious-based accommodation. The denial did not mention the waiver.

Petitioner remained on leave without pay and retained her health benefits through September 6, 2022 but as she did not return to work by September 6, 2022, DOE deemed that, pursuant to the terms of the waiver and the arbitration award, she had voluntarily resigned as of September 6, 2022.

Subsequently Petitioner commenced the instant proceeding pursuant to CPLR Article 78, challenging DOE's denial of her request for a religious exemption and seeking reinstatement to her position as a teacher and an award of back pay and attorneys' fees. Supreme Court the petition be granted and that the Petitioner be reinstated to her full employment status. In addition Supreme Court found:

a. Petitioner was entitled to a religious exemption from the vaccine mandate; and

b. Awarded Petitioner the principal of sum of $90,555.63 in back pay;  and 

c. The sum of $31,095 in attorneys' fees. 

DOE appealed from both the Supreme Court's order and the judgment.

The Appellate Division held that DOE's appeal from the order must be dismissed "as no appeal lies as of right from an intermediate order entered in a proceeding pursuant to CPLR article 78 [citing CPLR 5701[b][1])] and any possibility of taking a direct appeal therefrom terminated with the entry of the judgment in the proceeding."

Although DOE contended that the waiver expressly precludes the Petitioner's claims in this proceeding and, therefore, the proceeding should have been dismissed, the Appellate Division opined that "The waiver at issue is a contract, and its  construction is governed by contract law [and] A court's fundamental objective in interpreting a contract is to determine the parties' intent from the language employed and to fulfill their reasonable expectations".

However, as acknowledged by DOE, the Appellate Division observed Petitioner's "contractual promise not to challenge her resignation was not a waiver of her right to seek an accommodation", and thus it follows that Petitioner did waive her right to seek a religious exemption. 

The Appellate Division explained "The clear terms of the waiver, as premised on the arbitration award, permitted the [Petitioner] to comply with the vaccine mandate and return to work by September 6, 2022. One way to comply with the vaccine mandate was for the [Petitioner] to get vaccinated. Another was to successfully obtain a religious exemption and reasonable accommodation" and the amendment to the vaccine mandate earlier noted did not bar individual from seeking reasonable accommodations. 

Noting that had Petitioner had successfully obtained an exemption and concomitant accommodation during the applicable time period, she would have been in compliance with the vaccine mandate and been able to return to work. In the words of the Appellate Division, "contrary to DOE's position, the waiver did not preclude this proceeding to challenge DOE's denial of the [Petitioner's] request for a religious exemption".

In its appeal DOE did not challenge the Supreme Court's determination that DOE's denial of the petitioner's request for a religious exemption was arbitrary and capricious. Therefore, as per Supreme Court's determination, prior to September 6, 2022, the Petitioner was entitled to a religious exemption from the vaccine mandate, and DOE does not contest that determination on this appeal. Accordingly, the Appellate Division affirmed the Supreme Court's determination in this regard.

However, the Appellate Division further held that because an award of attorneys' fees was  not authorized by an agreement between the parties, by statute, or by court rule, "the Supreme Court improperly awarded attorneys' fees to the [Petitioner]."

Click HERE to access the Appellate Division's decision posted on the Internet.

Lack of evidence in the record that the employer was aware of the employee's disability when denying a request for reasonable accommodation bars a court's summary judgment dismissing the employee's complaint

In an action to recover damages for alleged employment discrimination on the basis of disability in violation of the New York State Human Rights Law [NYSHRL], Plaintiff appealed a Supreme Court order granting the Employer's motion for summary judgment dismissing the Plaintiff's complaint.

The Appellate Division reversed the lower court's decision "on the law, with costs", and denied the Employer's motion for summary judgment dismissing the Plaintiff's complaint.

Plaintiff, a custodial worker, requested reassignment to a custodial position in one of the Employer's senior citizens centers as a reasonable accommodation of his disability. In response to the Plaintiff's request, Employer told Plaintiff "it was currently unable to provide the requested accommodation, as [granting] the request would require the [Plaintiff] to be permanently excused from performing the essential functions of his position".

Citing Executive Law §296[a], the Appellate Division observed that the NYSHRL prohibits discrimination in employment based on, among other prohibitions, disability. In particular, the Appellate Division noted that if a reasonable accommodation would permit the employee to perform the essential functions of the employee's position and the employee has a disability' within the meaning of the statute, "the employer cannot disadvantage the employee based on that disability".

As a reasonable accommodations includes "reassignment to an available position", an employer normally cannot obtain summary judgment on an employment discrimination claim based on disability pursuant to NYSHRL "unless the record demonstrates that there is no triable issue of fact as to whether the employer duly considered the requested accommodation," and the employer cannot present such a record "if the employer has not engaged in interactions with the employee revealing at least some deliberation upon the viability of the employee's request".

In this instance the Employer failed to establish, prima facie, that it engaged in a good-faith interactive process that assessed the needs of the Plaintiff and the reasonableness of his requested accommodation. 

In the words of the court, "There is no evidence in the record that the [Employer] was aware of the [Plaintiff's] condition when [it] made [the] determination or that the [Employer] considered the accommodation that the [Plaintiff] was requesting to be reassigned to the position of a custodian at one of the [Employer's] senior  citizens centers". 

In particular, the Appellate Division noted the record showed:

1. The Employer testified that he had no memory of meeting with the Plaintiff to discuss his request for an accommodation;

2. The Employer testified that he did not know that the Plaintiff's request for an accommodation concerned psoriatic arthritis;

3. The Employer did not know the limitations typically associated with that condition; 

4. The Employer did not know the limitations that the condition allegedly caused the Plaintiff to suffer; and

5. The Employer testified that he did not speak with the Plaintiff's physician and did not recall reviewing any of the information that the physician provided to the Employer concerning the Plaintiff.

According, the Appellate Division held that the Employer's motion for summary judgment dismissing the Plaintiff's complaint should have been denied by Supreme Court without regard to the sufficiency of the Plaintiff's opposition papers.

Click HERE to access the Appellate Division's decision posted on the Internet.

Selected items from various blogs posted during the week ending August 8, 2025

 

Think Universal Child Care Can't Be Done? Keep an Eye on What NYC Is Doing The city’s movement toward free care for kids up to age 2 could be a gamechanger with national implications. And it’s a sign of the growing political strength of working parents. READ MORE How Artificial Intelligence Transforms the Constituent Experience in Government This paper explores how AI is transforming constituent services in state and local government by streamlining operations, improving accessibility, and enhancing public trust. Through real-world examples, it offers practical guidance for implementing scalable, people-centered AI solutions that deliver measurable impact. DOWNLOAD  A Government Playbook to Prepare for the Next Wave of AI Innovation Many state and local governments are advancing their AI maturity, progressing from basic, prompt-based AI to more sophisticated generative AI and early agentic AI implementations. But as governments accelerate AI adoption, they still face several governance challenges. Download this guide to find out how your agency can move forward and capitalize on the next wave of AI innovation. DOWNLOAD Rethinking Digital Access: How Public Sector Agencies Are Solving Digital Identity at Scale  Learn how public agencies are making digital services easier to access, more secure, and more inclusive through smarter identity management. This guide explores the real-world impact of modern Customer Identity and Access Management (CIAM) solutions, including reduced abandonment rates, stronger compliance, and better service access for all users—regardless of device, location, or digital literacy. DOWNLOAD  A Government Playbook to Prepare for the Next Wave of AI Innovation Many state and local governments are advancing their AI maturity, progressing from basic, prompt-based AI to more  sophisticated generative AI and early agentic AI implementations. But as governments accelerate AI adoption, they still face several governance challenges. Download this guide to find out how your agency can move forward and capitalize on the next wave of AI innovative. DOWNLOAD Exposing Organized Fraud Patterns in Government Programs  The message is clear: Fraudsters are attacking government programs with relentless speed, using stolen and fake identities, across state borders and within agencies, often driven by complex crime networks that are difficult to entirely track down and stop. READ MORE Get your AI benchmark and take action! Discover your agency’s AI readiness in just 5 questions — identify roadblocks and know where you stand. Reveal My AI Score!

State Comptroller DiNapoli Releases Municipal and School Audits

On August 7, 2025, New York State Comptroller Thomas P. DiNapoli  announced the following local government and school audits were issued.

Click on the text highlighted in color to access the audit of interest.

Town of Pound Ridge – Procurement and Claims Auditing (Westchester County)

Town officials did not procure all goods and services in accordance with board policy and applicable statutory requirements. As a result, officials cannot support that all goods and services were procured in the most cost-effective manner, which may have resulted in higher operational costs that would be passed onto taxpayers. The board also did not always properly audit claims before approving them for payment. For example, town officials did not seek competition or maintain supporting documentation for 28 purchases totaling $745,372. In addition, 48 claims totaling $299,716 were not properly audited by the board before payment and 226 credit card purchases totaling $54,359 did not have supporting documentation such as receipts or itemized invoices.

Otisco Fire District – Financial Activities (Onondaga County)

We conducted an audit of the district’s financial management procedures and issued a report in February 2017 that identified certain conditions and opportunities for the board’s review and consideration. We returned to the district in July 2024 to conduct an audit follow-up review. Based on our review, the district made no progress in implementing corrective action. Of the three audit recommendations, two recommendations were not implemented, and one recommendation was not applicable for the period that we reviewed. During the course of our audit follow-up, we identified additional deficiencies in the district’s accounting records and procedures that resulted in a determination for a more comprehensive review. As such, we engaged the district in this separate audit.

Our audit determined that the board did not ensure that the treasurer was properly accounting for district collections and depositing funds in a timely manner, and the board and treasurer did not ensure disbursements were properly supported and authorized and that periodic financial information reported to the board was sufficient or accurate. Auditors determined that 12 collections totaling $425,202 were not deposited in a timely manner (averaging 154 days late), including two deposits totaling $22,143 that were made more than a year and a half late; eight collections totaling $24,453 were not recorded accurately; 11 claims totaling $130,435 were not approved by the board prior to payment; and 26 claims totaling $19,479 lacked adequate supporting documentation. In addition, the treasurer’s financial reports to the board were not accurate and supported by the accounting records. For example, the treasurer reported $53,424 less cash than was in the district’s bank accounts. Bank reconciliations included questionable reconciling items and were not provided to or reviewed by the board. The treasurer also did not provide financial records to the board for the annual audit, and the board did not request the treasurer’s financial records annually for audit.

Bayport-Blue Point Central School District – Lead Testing and Reporting (Suffolk County)

District officials did not properly identify, report or implement needed remediation to reduce lead exposure in all potable water outlets as required by state law and Department of Health regulations. Auditors determined 39 of the 312 (13%) water outlets identified at select areas were not sampled or properly exempted by district officials. This occurred because district officials did not have complete sampling and remedial action plans that identified all water outlets for sampling or which water outlets they specifically exempted from sampling. Because there is no information on the lead levels of the 39 water outlets not sampled for testing, auditors were unable to determine whether officials identified and remediated all water outlets that would have required it. Of the 470 water outlets the district sampled for testing, 120 (26%) exceeded the lead action level. Auditors reviewed 25 of the water outlets with actionable lead levels and determined that 11 (44%) were not retested and effective controls were not implemented to prevent them from being used for cooking or drinking. District officials did not always report laboratory testing results to all parties or within the required time periods and did not notify staff, parents and/or guardians of the results in writing, as required. Finally, officials posted the test results of the potable water outlet sampling on the district’s website five weeks late.

Harpursville Central School District – Lead Testing and Reporting (Broome County/Chenango County)

District officials did not properly identify, report or implement needed remediation to reduce lead exposure in all potable water outlets as required by state law and Department of Health regulations. Auditors determined 24 of the 197 (12%) water outlets identified at select areas were not sampled or properly exempted by district officials. Further, officials could not provide documentation that they notified staff, parents and/or guardians in writing of the testing results identifying that 37 out of 189 (20%) sampled water outlets exceeded the lead action level, as required. Finally, the district did not post the test results of the resampled potable water outlets on their website.

Oxford Academy and Central School District – Lead Testing and Reporting (Chenango County)

District officials did not properly identify all potable water outlets for sampling or exemption as required by state law and Department of Health regulations. Auditors determined 173 of the 310 (56%) water outlets identified at select areas were not sampled or properly exempted by district officials. None of the 40 water outlets the district sampled for testing exceeded the lead action level and district officials reported all testing results to the necessary parties in the required time periods and posted these results on their website as required.

Tupper Lake Central School District – Lead Testing and Reporting (S9-25-14) (Franklin County/St. Lawrence County)

District officials did not properly identify, report or implement needed remediation to reduce lead exposure in all potable water outlets as required by state law and Department of Health regulations. Auditors determined 156 of the 310 (50%) water outlets identified at select areas were not sampled or properly exempted by district officials. Of the 105 water outlets the district sampled for testing, 22 water outlets exceeded the lead action level. Auditors determined that 14 of these 22 outlets (64%) with actionable lead levels were still in service without a test showing they were now below the lead action level or effective controls to prevent them from being used. District officials did not ensure that the test results exceeding the lead action level were directly reported to the local health department within one business day. Additionally, district officials did not notify staff, parents and/or guardians of the test results exceeding the lead action level in writing within 10 business days, as required, or post the test results of all potable water outlet sampling and testing on the district’s website.

Johnstown City School District – Lead Testing and Reporting (Fulton County/Montgomery County)

District officials did not properly identify, report or implement needed remediation to reduce lead exposure in all potable water outlets as required by state law and Department of Health regulations. Auditors determined 95 of the 264 (36%) water outlets identified at select areas were not sampled or properly exempted by district officials. Of the 273 water outlets the district sampled for testing, 12 water outlets exceeded the lead action level. Auditors determined four of these 12 outlets with actionable lead levels were still in service, were not retested and effective controls were not implemented to prevent them from being used. Two of the water outlets were located in classrooms, one in a bathroom, and the other at a kitchen sink. Although district officials notified the local health department about the lead action exceedances resulting from tests, they did not notify staff, parents and/or guardians of these results in writing, as required. Further, they only posted details on their website of the water outlets that tested above the lead action level and remedial action taken, not the full testing results as required.

Poland Central School District – Lead Testing and Reporting (Hamilton County/Herkimer County/Oneida County)

District officials did not properly identify, report or implement needed remediation to reduce lead exposure in all potable water outlets as required by state law and Department of Health regulations. District officials were unable to determine which of the 176 water outlets auditors identified at select areas were sampled for testing. Therefore, auditors determined 132 of the 176 (75%) water outlets identified were not properly secured against use. Further, although 28 of the 129 water outlets that the district sampled and tested exceeded the lead action level, because district officials could not identify which water outlets exceeded the lead action level, and because there was no information on the lead levels of the 132 water outlets that auditors determined were not properly secured against use, auditors were unable to determine whether officials identified and remediated all water outlets that would have required it. This occurred because district officials did not have a sampling plan. Although district officials learned on Dec. 22, 2020 that 28 water outlets exceeded the lead action level, as of the conclusion of our fieldwork on March 21, 2025, officials had not performed any remedial action on the 28 water outlets that exceeded the lead action level. Although the former director of facilities had a remedial action plan that described what remedial actions were planned or enacted for water outlets that tested above the lead action level, auditors were unable to determine whether such actions were implemented because current district officials could not identify the water outlets’ locations. District officials did not report exceedances directly to the local health department and did not have any documentation to support that staff, parents and/or guardians were notified of the exceedances in writing. Also, district officials did not always post results on the website and when they did, auditors were unable to determine if they had done so within the required time period.

Recovering overpayments of compensation paid to an employee of the State of New York

An employee and a representative of PEF [jointly Plaintiffs] commenced this combined CPLR Article 78 proceeding and action for declaratory judgment claiming that the employee's employer's [Respondents'] actions seeking to recover salary overpayments from the employee were arbitrary and capricious, violated the New York State Finance Law and deprived the employee of due process under the United States' Constitution. 

Supreme Court determined that Respondents had violated the New York State Finance Law and Respondents' internal policies, as well as failing to comply with the due process requirements within the meaning of the United States Constitution in recovering the alleged overpayments from the employee. Accordingly, Supreme Court granted the Plaintiff's petition and ordered Respondents to reimburse the employee all the money deducted from her paychecks. Respondents appealed the Supreme Court's ruling.

The Appellate Division said the Plaintiffs "essentially raised two types of challenges to Respondents' actions:

1. The Respondents' authority to recover the alleged overpayments of the employee's compensation; and 

2. The manner in which such overpayments had been recovered from the employee.

According to the Appellate Division's decision, the employee began to run out of paid leave accruals but continued to take time off from her employment due to unexpected nonwork obligations through August 2023 and indicated that: 

1. The employee in completing a biweekly timesheets, was required to input a report a "lost time" code into the timekeeping system; 

2. Such code entries* served to record the time that an employee had not earned all of the compensation included in the relevant pay check for further processing;

3. For each instance that this code was entered, a pop-up window appeared on the screen notifying the viewer of the lost time entry and to then instructed the viewer to click a button to  acknowledge that they had seen the warning. 

In May 2023, and after the employer provided the employee with counseling memoranda and a notice of discipline concerning her attendance issues, Respondents began recouping employee's lost time from her paychecks based on the lost time codes that employee had previously entered on her timesheets. These deductions varied from paycheck to paycheck, but in certain instances left as little as just a few dollars remaining in employee's biweekly paycheck.

The Appellate Division, in reversing the Supreme Court's ruling, noted that in the context of the instant CPLR Article 78 proceeding the court's review is limited to whether the administrative agency's action in question "was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion".

Noting that the payment of salaries of state employees is governed by State Finance Law §200, the Appellate Division said the state's attempt to recover overpayments is limited to those "made (i) for a period when the employee was neither performing services for the state nor on approved leave or (ii) under circumstances where the comptroller reasonably determines that the employee knew, or that a reasonable employee should have known, that the salary paid to him or her was in excess of that which he or she was entitled to receive". 

In addition the Appellate Division opined that where the challenged action is premised on the interpretation of a statute, such interpretation "by the agency charged with its enforcement is, as a general matter, given great weight and judicial deference, so long as the interpretation is neither irrational, unreasonable nor inconsistent with the governing statute".

* Such code records the time that an employee had not earned compensation as the procedure used to process the state's payroll does not permit adjustments deducting any unearned compensation prior to printing of the paycheck for the relevant payroll period.

The Appellate Division's decision is set out below.

Matter of Spence v Office of the N.Y. State Comptroller

2025 NY Slip Op 04208

Decided on July 17, 2025

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: July 17, 2025, CV-24-0375

In the Matter of Wayne Spence, as President of the New York State Public Employees Federation, AFL-CIO, et al., Respondents,

v

Office of the New York State Comptroller et al., Appellants.

Calendar Date: June 2, 2025

Before:Garry, P.J., Egan Jr., Fisher, Powers and Mackey, JJ.

Letitia James, Attorney General, Albany (Frederick A. Brodie of counsel), for appellants.

Edward J. Greene Jr., New York State Public Employees Federation, AFL-CIO, Albany (David J. Friedman of counsel), for respondents.

Fisher, J.

Appeal from a judgment of the Supreme Court (Peter Lynch, J.), entered February 5, 2024 in Albany County, which granted petitioners' application, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, to annul respondent Office of General Services' payroll deductions from petitioner Erin Miles' paychecks.

Petitioner Erin Miles, a member of the New York State Public Employees Federation, AFL-CIO (hereinafter PEF), has been employed by respondent Division of Criminal Justice Services (hereinafter DCJS) for approximately 16 years. In October 2022, Miles began to run out of paid leave accruals but continued to take time off from her employment due to unexpected nonwork obligations through August 2023. In completing her biweekly timesheets, Miles was required to input a "lost time" code into the timekeeping system. Such code serves as a placeholder for time that an employee has not earned pay for but, because of the speed by which the state's payroll is processed, the human resources staff cannot deduct the unearned money before issuance of the paycheck. For each instance that this code was entered, a pop-up window appeared on the screen notifying the viewer that "[l]ost [t]ime entered may result in a payroll deduction" and required the viewer to click a button acknowledging that they had seen the warning. Beginning in May 2023, and after DCJS provided Miles with counseling memoranda and a notice of discipline for her attendance issues, respondents began recouping Miles' lost time from her paychecks based on the lost time codes that she had previously entered on her timesheets. The deductions varied from paycheck to paycheck, but in certain instances left as little as just a few dollars remaining in her biweekly paycheck.

Thereafter, Miles and petitioner Wayne Spence, a representative of PEF, commenced this combined CPLR article 78 proceeding and action for declaratory judgment claiming that respondents' actions were arbitrary and capricious, violated the State Finance Law and deprived Miles of due process under the US Constitution. The petition essentially raised two types of challenges to respondents' actions in question; the first being respondents' authority to recover overpayments, and the second relating to the manner in which such overpayments had been recovered from Miles. After joinder of issue, Supreme Court determined that respondents had violated the State Finance Law and their internal policies, as well as failed to comply with the due process requirements under the US Constitution in recovering overpayments from Miles. As a result of this determination, Supreme Court granted the petition and ordered respondents to reimburse Miles for all the money deducted from her paychecks. Respondents appeal.

We reverse. In the context of this CPLR article 78 proceeding, our review is limited to whether the administrative agency's action in question "was made in violation of lawful procedure, was affected by an error [*2]of law or was arbitrary and capricious or an abuse of discretion" (CPLR 7803 [3]; see Matter of Brookdale Physicians' Dialysis Assoc., Inc. v Department of Fin. of the City of N.Y., 41 NY3d 608, 616 [2024]; Matter of Lake George Assn. v NYS Adirondack Park Agency, 228 AD3d 52, 57 [3d Dept 2024], lv denied 42 NY3d 908 [2024]). Where the challenged action is premised on the interpretation of a statute, such interpretation "by the agency charged with its enforcement is, as a general matter, given great weight and judicial deference, so long as the interpretation is neither irrational, unreasonable nor inconsistent with the governing statute" (Matter of Carlson v Tax Appeals Trib. of the State of N.Y., 214 AD3d 1133, 1135 [3d Dept 2023] [internal quotation marks and citations omitted]). As pertinent here, the payment of salaries of state employees is governed by State Finance Law § 200, which in relevant part prohibits the state from attempting to recover certain overpayments unless they were "made (i) for a period when the employee was neither performing services for the state nor on approved leave or (ii) under circumstances where the comptroller reasonably determines that the employee knew, or that a reasonable employee should have known, that the salary paid to him or her was in excess of that which he or she was entitled to receive" (State Finance Law § 200 [3] [b]; see State Finance Law § 200 [3] [a]).

Respondents contend that they were authorized to recover lost time overpayments from Miles, thus Supreme Court erred in determining that State Finance Law § 200 (3) did not apply. We agree. It is undisputed that Miles took time off from her employment beyond her paid leave accruals and, therefore, was paid a salary for lost time that she was not entitled to receive because she was not performing services for the state. The record further supports that Miles knew or reasonably should have known that she was not entitled to such payments, as she entered a lost time code and acknowledged each time that she "may" face a payroll deduction — doing so for almost 10 months. Miles also received numerous counseling memoranda relating to her time and attendance, two notices of discipline for lost time and participated in an interview on her lost time and overall time and attendance issues — during which she acknowledged her substantial lost time from her employment. Notably, Miles knew or reasonably should have known that she was not entitled to keep unearned wages as she previously had lost time overpayments recovered from her in a separate incident in 2017. Based on the foregoing, since Miles was not "entitled to salary for a period during which she performed no services" (State of New York v Welch-Richards, 209 AD2d 847, 849 [3d Dept 1994]), we are satisfied that respondents were authorized to recover overpayments from Miles under the State Finance Law and, in doing so, such recoupment was not affected by an error of law (see State Finance Law § 200 [3] [*3][a]-[b]).

Next, we turn to petitioners' challenges relating to the manner in which respondents recovered overpayments from Miles. First, respondents contend that Supreme Court erred in finding that the payroll deductions were made in an arbitrary and capricious manner, and otherwise violated respondents' policies and procedures. We find respondents' contention to have merit. "An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts. When a determination is supported by a rational basis, it must be sustained even if the reviewing court would have reached a different result" (Matter of John E. Andrus Mem., Inc. v Commissioner of Health of the N.Y. State Dept. of Health, 225 AD3d 959, 961 [3d Dept 2024] [internal quotation marks and citations omitted]). "In general, if an administrative agency does not follow its own precedent when faced with similar facts, its determination will be deemed to be arbitrary and capricious unless it explains its departure from such precedent" (Matter of Atlanticare Mgt., LLC v Ives, 212 AD3d 132, 143 [3d Dept 2022] [internal quotation marks and citations omitted], lv denied 40 NY3d 902 [2023]).

Here, respondents offered affidavits from various representatives of their respective agencies, as well as related documentary evidence. In the affidavit of a chief business services officer, she explained that, although it was true that one of the payroll manuals limited respondents to recovering up to 10% of an employee's biweekly pay, such provision did not apply to Miles because such provision in the manual was expressly governed by State Finance Law § 200 (3) and, therefore, the exceptions under paragraphs (a) and (b) applied. Rather, she stated that a separate internal payroll manual applied, which recommended limiting recoupment of lost time overpayments to not more than nine days' worth of unearned pay (out of 10 days in a pay period) in order to leave some earnings so that standard payroll deductions could be taken out as usual. With this in mind, the record confirms that respondents generally deducted payments from Miles' paychecks in chronological order of when the lost time entries had been made. Where the next lost time entry would result in a deduction beyond nine days' worth of time, respondents either skipped to the next lost time entry that fit within the remaining time or used a partial amount. Although such process created inconsistencies between each paycheck amount received by Miles and perhaps was imperfect, we cannot say that it was without sound basis in reason or regard to the facts. We therefore find that respondents' recoupment process was not arbitrary and capricious (see Matter of John E. Andrus Mem., Inc. v Commissioner of Health of the N.Y. State Dept. of Health, 225 AD3d at 962; Matter of Wallon v New York State Teachers' Retirement Sys., 294 AD2d 644, 645-646 [3d Dept 2002]; Page v Macchiarola, 126 AD2d 713, 713 [2d Dept 1987], lv denied 70 NY2d [*4]602 [1987]; see also Matter of Garden of Eden Home, LLC v Bassett, 235 AD3d 1147, 1152 [3d Dept 2025]).

Second, respondents contend that Supreme Court erred in determining that the manner in which respondents recovered lost time overpayments violated Miles' due process rights. We find this contention persuasive. The Fourteenth Amendment to the US Constitution prohibits states from depriving "any person of life, liberty, or property, without due process of law" (US Const 14th Amend). It is undisputed that respondents' deductions deprived Miles of her property interest in her wages (see Sniadach v Family Finance Corp. of Bay View, 395 US 337, 340 [1969]), so the question here distills to whether she received adequate process before respondents recovered those wages. To do so, courts must balance three factors in determining the requirements of due process in any given context. "First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail" (Mathews v Eldridge, 424 US 319, 335 [1976] [citation omitted]). In weighing such factors, courts must remain mindful that "[d]ue process is flexible and calls for such procedural protections as the particular situation demands" (People ex rel. Neville v Toulon, 43 NY3d 1, 9 [2024] [internal quotation marks and citations omitted]).

Here, each of the factors weigh in favor of respondents. Miles does not have a protected private interest in the property taken because it is uncontested that — unlike the cases relied on by petitioners — she did not earn wages for the hours she inputted as lost time(see State of New York v Welch-Richards, 209 AD2d at 849; compare Loehr v New York State Unified Ct. Sys., 150 AD3d 716, 721 [2d Dept 2017], lv denied 30 NY3d 903 [2017]). Nor can it be said that there is a risk of erroneous deprivation which weighs in her favor, as Miles does not contest the accuracy of either the amount of lost time hours or the monetary deductions. Rather, the record reveals that she confirmed the amount of lost time figures during her interview — including the four instances where a third party had to enter her lost time due to her extended absences from work. Moreover, the submissions from various representatives employed by respondents also demonstrated that the process of recouping lost time goes through multiple levels of review before the deductions begin. Although petitioners highlight that certain human resources staff members provided Miles with inaccurate statements relating to the amount of the deductions per paycheck, such misstatements also did not increase the risk of an erroneous deprivation in light of the fact that Miles does [*5]not contend respondents ultimately took more than they were entitled to recoup. Lastly, the third factor weighs significantly in favor of respondents, as the Comptroller has a "unique and nondelegable duty to protect the public fisc" (City of New York v State of New York, 87 NY2d 982,990 [1996] [Bellacosa, J., concurring in part and dissenting in part]), including preventing overpayments (see Matter of Martin H. Handler, M.D., P.C. v DiNapoli, 23 NY3d 239, 247 [2014]), which "fall[s] under the rubric of promoting the public interest" (Matter of New York State Ch., Inc., Associated Gen. Contrs. of Am. v New York State Thruway Auth., 88 NY2d 56, 68 [1996]). Respondents further have an interest "in conserving scarce fiscal and administrative resources" (Mathews v Eldridge, 424 US at 348), and such resources would be diminished if respondents were required to hold an evidentiary hearing each time they attempted to recoup lost time payments (see Savastano v Nurnberg, 77 NY2d 300, 309 [1990]). This is particularly true here because, based on the experience of respondents' representatives, employees who use lost time codes often do not stay in state service for long, and litigation efforts to recover funds owed to the state are often unfruitful. Significantly, given the fact that Miles does not contest the amount of money that was recouped, and further due to the lack of a factual predicate requiring a hearing, any additional safeguards would have imposed substantial administrative and fiscal burdens on respondents "with no apparent countervailing benefit to [Miles]" (Rao v Gunn, 73 NY2d 759, 761 [1988]). As such, we are satisfied that, under the circumstances of this unique case, respondents' actions comported with the requirements of due process (see Mathews v Eldridge, 424 US at 349; Tepper v Galloway, 481 F Supp 1211, 1224 [ED NY 1979]).

Accordingly, Supreme Court should have dismissed the petition in its entirety. To the extent that petitioners also sought declaratory relief on the ground that respondents' policies of recovering overpayments violate the law, we note that such contention is duplicative of the relief sought under CPLR article 78 and, therefore, unnecessary to address separately within the context of CPLR 3001 (see Matter of Smith v City of Norwich, 205 AD3d 140, 146 [3d Dept 2022]; Matter of Gable Transp., Inc. v State of New York, 29 AD3d 1125, 1128 [3d Dept 2006]). The parties' remaining contentions have been considered and found to be without merit or rendered academic.

Garry, P.J., Egan Jr., Powers and Mackey, JJ., concur.

ORDERED that the judgment is reversed, on the law, without costs, and petition dismissed.