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Denied Commission Stay, Trainer Noda Fights NYSGC Penalty in Court

In an effort to fight a 90-day suspension and $5,000 fine for “striking a horse excessively” during a 2021 workout at Saratoga Race Course, trainer Orlando Noda has commenced proceedings in Schenectady Supreme Court that he hopes will prove the New York State Gaming Commission (NYSGC) acted unlawfully last month when it rejected an appeal hearing officer's recommendation that his case be dismissed without penalization.

Noda's legal filing is known as an Article 78 review, which pertains to a New York state law by which a petitioner can ask a court to review a decision or action of a state official or administrative agency.

Article 78 filings have a reputation for being costly to litigate and very time consuming, sometimes dragging on for months or even several years in the court system.

Although the two cases are not related, Noda's penalty got handed down during the same Dec. 12 NYSGC meeting as a ruling imposed upon Richie Gazer, the longtime New York Racing Association head clocker who was suspended 30 days and fined $2,500 for “altering a published work of a horse to make the horse eligible to race.”

But taken together, those two same-day adjudications share a commonality in that both decisions by the NYSGC represented a forceful rejection of each hearing officer's months of work in conducting the appeals and writing up the reports.

In both instances, the commissioners voted unanimously to impose the original penalties that had been handed down by Braulio Baeza, Jr., the NYSGC state steward at the three NYRA tracks.

Although such outright rejections are unusual, most racing commissions nationwide are not bound to accept the opinions of hearing officers, who are often attorneys, that they hire to hear appeals.

In both Noda's and Gazer's cases, their respective attorneys had asked the commission for a stay of their penalties pending Article 78 filings. Both were denied last month by the NYSGC.

“I asked the commission for a stay as a courtesy,” Drew Mollica, Noda's attorney, told TDN. “I was denied on Dec. 20. I was in court Dec. 28, and the judge issued a stay. He can continue training. We have filed our Article 78 and we are pursuing a full and fair review of this unjust decision. In this case, the record is clear: There never was, and there is not now, any evidence that Mr. Noda did what they accused him of, and the hearing officer knew that.”

The hearing officer who oversaw Noda's appeal, S. David Devaprasad, wrote in his Nov. 1 report that, “The regulations Respondent is alleged to have violated…are impermissibly vague and [there are no written] standards as to what constitutes the proper or improper use of a crop or whip while training a horse.”

The report continued: “The testimony at the Hearing of the Commission's single eyewitness of the alleged incident was simply not sufficient (nor any more credible than Respondent's testimony in defense) to establish that Respondent engaged in any action detrimental to the best interest of racing generally or was guilty of any improper, corrupt, or fraudulent act or practice…”

Back on Dec. 12 NYSGC chairman Brian O'Dwyer disagreed. In reading Noda's decision into the record, he said that, “The commission duly deliberated and considered this matter, and determined by a 6-0 vote to reject the hearing officer's report and recommendations. In doing that, commissioners reviewed the entire record, and established by a preponderance of evidence that Noda's conduct was improper and detrimental to the best interest of racing, and determined that the appropriate penalty was that which was given by the stewards.”

Along with O'Dwyer, NYSGC commissioners John Crotty, Peter Moschetti, Jr., Christopher Riano, Marissa Shorenstein and Jerry Skurnik all voted in favor of rejecting the hearing officers' recommendations in the two cases.

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Trainer, Clocker Stunned as NYSGC Rejects Advice of from Hearing Appeal Officers

by T.D. Thornton & Bill Finley

The New York State Gaming Commission (NYSGC) on Monday adjudicated two unrelated penalty appeals by a clocker and a trainer by flat-out rejecting two separate hearing officers' recommendations that those cases be dismissed without penalization.

In both instances, the commissioners voted unanimously to impose the original penalties that had been handed down by Braulio Baeza, Jr., the NYSGC state steward at the three New York Racing Association (NYRA) tracks.

Monday's vote means trainer Orlando Noda now must pay a fine of $5,000, serve a 90-day suspension, and complete an anger management course prior to being reinstated for “for striking a horse excessively while working the horse out at Saratoga Race Course on Aug. 5, 2021,” according to the NYSGC.

And Richard Gazer, a longtime NYRA clocker, has been fined $2,500 and suspended 30 days “for altering a published work of a horse to make the horse eligible to race,” the NYSGC ruled.

The outright rejections of the officers' combined days of conducting the hearings and their months spent writing up the reports is somewhat unusual. But in a number of jurisdictions, racing commissioners are not bound to accept the opinions of the officers they hire to hear appeals.

Drew Mollica, who represents Noda, told TDN in a phone interview he was stunned by the NYSGC's decision.

“This is crazy. I was just telling my colleagues, 'I win, but I lose,'” Mollica said.

“This is madness. The hearing officer is the one who heard the evidence. On what basis, what evidence, did the commission use to overturn the hearing officer's recommendation?” Mollica asked rhetorically.

Noda, who has been training since 2019, is also licensed as an exercise rider.

In his reading into the record of the decision, NYSGC chairman Brian O'Dwyer said that, “The commission duly deliberated and considered this matter, and determined by a 6-0 vote to reject the hearing officer's report and recommendations. In doing that, commissioners reviewed the entire record, and established by a preponderance of evidence that Noda's conduct was improper and detrimental to the best interest of racing, and determined that the appropriate penalty was that which was given by the stewards.”

Mollica said he will confer with Noda about using “every legal remedy at his disposal” to fight the commission's order, “because the hearing officer vindicated him and found that he did nothing wrong.”

Gazer's penalty stems from a May 19, 2022, ruling in which the commission stated he “alter[ed] a horse's workout time while training at Belmont Park.”

The horse in question, Papi On Ice (Keen Ice), was initially credited with a five-furlong work in 1:04.60. The work was later changed to a half-mile in :51.33.

Because Papi On Ice had been beaten more than 25 lengths in a previous start, that result triggered a precautionary placement on NYRA's “poor performance” list. In order to get off that list, a horse must work a half-mile in :53 or faster. But the rule does not allow for a workout farther than a half mile.

Because Papi On Ice's workout was initially published as a five-furlong move, the racing office would not accept the colt's entry for a race.

Gazer told DRF.com back in May that the time of the work was not changed, but that the distance was shortened to comply with NYRA's rule. He did not time Papi On Ice himself, but a subordinate clocker told him the horse did work a properly timed half mile as part of the longer five-eighths breeze.

“This is a joke. It really is,” Gazer told TDN Dec. 12. “I've been doing this for 40 years. The horse was on the other training track, went a half-mile, and galloped out five-eighths and the trainer, Randi Persaud, wanted the five-eighths time. But they have that rule where he had to have a half-mile workout. It's a stupid rule. They called me up and I said I would change it. It was no big deal. It was either :51 for the half or 1:04 and something for five-eighths.”

Gazer continued: “We had a seven-hour hearing, [the hearing officer] recommended that they drop all the charges. And then they do this. It doesn't make any sense.”

Chairman O'Dwyer said Monday that the commissioners saw it differently.

“The commission reviewed the entire record [and] established the violation as a matter of fact,” O'Dwyer said. “And in particular, found that the conduct was improper in relation to commission rule 4042.1(f).”

That rule prohibits “improper, corrupt or fraudulent” acts or practices in relation to racing or conspiring or assisting others in such acts or practices.

The commissioners did not debate or discuss the details of the two cases during the open, public meeting, which is standard for the way the NYSGC usually issues appeal outcomes after a hearing officer issues a report.

Based on past practice, the NYSGC generally receives such reports and takes its vote on the hearing officer's recommendation at some point before the meeting, and the chairman then reads the results into the record when the meeting goes into session, explaining the vote in one or two sentences.

Karen Murphy, an attorney who represents Gazer, told TDN in an email that, “In the 30 years that I have been practicing before the Gaming Commission (and its predecessor) this has never happened….The decision in this matter was dependent on the credibility of the proffered witnesses. In recommending that all the charges be dismissed, including a 'fraudulent, corrupt act' charge, the designated Hearing Officer made a determination in favor of Mr. Gazer's credibility. Today, the Commission rejected that credibility [and] did so without giving any specific reasons or findings…”

Murphy added that the NYSGC's ruling against her client amounted to a failure of the open-government test, “and in doing so abjectly failed in its obligations under law to Mr. Gazer. We look forward to righting this wrong.”

The penalties for Noda and Gazer will go into effect within a few days upon formal issuance of the commission's findings and order.

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Orlando Noda Fined $5,000 ‘For Action Detrimental To The Best Interest Of Racing’

New York stewards have fined trainer Orlando Noda $5,000 “for action detrimental to the best interest of racing,” reports the Daily Racing Form.

While neither Noda nor commission steward Braulio Baeza would comment on the fine, the DRF report indicates sources that saw Noda “being overly aggressive on a horse that he was exercising ontrack during a recent morning in Saratoga.”

Noda plans to appeal the penalty with the help of attorney Drew Mollica.

Mollica told DRF: “Mr. Noda vehemently denies any behavior that warrants this kind of fine.”

NYRA Trainer Orlando Noda Fined $5,000

According to a ruling released Wednesday, trainer Orlando Noda has been fined $5,000 by the New York stewards for “action detrimental to the best interest of racing.”

According to a report in the Daily Racing Form, which cited multiple sources, Noda was seen being overly aggressive with a horse during morning exercise recently in Saratoga.

When reached by the TDN, Noda declined to comment and referred questions to his attorney, Drew Mollica.

“The commission rendered a fine and the allegation is not clear to me yet,” Mollica said. “I am still investigating, but I have spoken to Mr. Noda and he vehemently denies any actions that could have caused such a sanction. We are in the fact-gathering stage right now and we will defend this vigorously. At no time did he ever do anything to suggests a sanction of this magnitude.”

Noda's lone runner on the Thursday card at Saratoga, A Colt Named Susie (Frost Giant), was scratched, but the DRF reported that had nothing to do with Noda's fine. Rather, the horse was scratched because no one from his stable was present when the track veterinarian showed up to administer Lasix.

The ruling cites three regulations that the stewards used to assess a fine, including Rule 4022.11, which states: “The stewards have power to regulate and control the conduct of all officials and of all owners, trainers, jockeys, grooms and other persons attendant on horses.”

Noda has been training only since 2019, a year in which he won 11 races. He is having the best year of his career this year, with 26 wins from 161 starters for a winning rate of 16%. He is 4-for-30 at the current Saratoga meet.

Wednesday's ruling was the first for Noda since 2019, when he was fined on two separate occasions for minor offenses.

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