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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