                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 3, 2016                   522395
________________________________

In the Matter of LUIS PENA,
                    Petitioner,
      v
                                            MEMORANDUM AND JUDGMENT
NEW YORK STATE GAMING
   COMMISSION,
                    Respondent.
________________________________


Calendar Date:   September 14, 2016

Before:   McCarthy, J.P., Lynch, Rose, Devine and Mulvey, JJ.

                             __________


      Meyer, Suozzi, English & Klein, PC, Garden City (Andrew J.
Turro of counsel), for petitioner.

      Eric T. Schneiderman, Attorney General, Albany (Kathleen M.
Arnold of counsel), for respondent.

                             __________


Devine, J.

      Proceeding pursuant to CPLR article 78 (transferred to this
Court by order of the Supreme Court, entered in Schenectady
County) to review a determination of respondent which, among
other things, revoked petitioner's licenses to participate in
pari-mutuel harness racing for a period of three years.

      Petitioner, as a licensed trainer of harness racehorses, is
prohibited from allowing any horse in his "custody, care or
control to be started" in a race if certain substances are
administered to the horse within a specified period prior to the
race (9 NYCRR 4120.4 [a]; see 9 NYCRR 4120.2). All of the
numerous random drug tests of horses in petitioner's care were
negative. The New York State Racing and Wagering Board
                              -2-                522395

nevertheless obtained veterinary records insinuating that
petitioner ran afoul of the rule with regard to multiple
substances in the lead-up to hundreds of harness races run
between January 2010 and April 2012. The Board sought to suspend
or revoke petitioner's licenses and exclude him from New York
racetracks due to those violations (see Matter of Pena v New York
State Gaming Commn., 127 AD3d 1287, 1288 [2015], appeal
dismissed 25 NY3d 1059 [2015], lv denied 26 NY3d 903 [2015]).

      The administrative hearing on the charges focused in
significant part on the admissibility of the veterinary records
and their probative value, and the Hearing Officer admitted the
records into evidence. At the conclusion of the hearing, the
Hearing Officer sustained the charges in full and recommended
that petitioner's licenses be revoked, that he not be allowed to
reapply for three years and that he be fined $200 for each
violation. Respondent dismissed two of the 1,719 violations, but
otherwise adopted the Hearing Officer's recommendations.1
Petitioner then commenced the present CPLR article 78 proceeding,
and Supreme Court transferred the matter to this Court and stayed
respondent's determination.

      The determination against petitioner will be upheld if it
is supported by substantial evidence, defined as "such relevant
proof as a reasonable mind may accept as adequate to support a
conclusion or ultimate fact" (People ex rel. Vega v Smith, 66
NY2d 130, 139 [1985] [internal quotation marks and citation
omitted]; accord Matter of Bottom v Annucci, 26 NY3d 983, 984-985
[2015]). Petitioner does not dispute that respondent's
determination may be based upon hearsay evidence such as
information contained in the veterinary records (see Matter of
Gerald HH. v Carrion, 130 AD3d 1174, 1175 [2015]; Matter of Nolan
v Constantine, 166 AD2d 778, 779 [1990]). Moreover, there is no
question that the records were admissible in the administrative
context even though they were not certified (see Racing, Pari-


    1
        During the pendency of the administrative proceedings,
the powers and functions of the Board were transferred to
respondent (see Racing, Pari-Mutuel Wagering and Breeding Law art
1, as added by L 2012, ch 60, part A, § 1).
                              -3-                522395

Mutuel Wagering and Breeding Law § 321; State Administrative
Procedure Act § 306 [1]; Matter of Ragin v New York City
Employees' Retirement Sys., 19 AD3d 603, 604 [2005]). The issue,
as a result, is whether the records were "sufficiently relevant
and probative" to constitute substantial evidence for the
determination (People ex rel. Vega v Smith, 66 NY2d at 139; see
Matter of Doctor v New York State Off. of Alcoholism & Substance
Abuse Servs., 112 AD3d 1020, 1022 [2013]; Matter of Nolan v
Constantine, 166 AD2d at 779).

      Horses in petitioner's care are stabled in New Jersey and,
as such, respondent's director of investigations, Joel Leveson,
requested the assistance of the New Jersey Racing Commission in
obtaining the veterinary records. Joseph Trapanese, the
administrator of investigations for the New Jersey Racing
Commission, procured records from January 2010 through April 2012
directly from the veterinary practice that treated horses under
petitioner's care and prepared the records. The veterinarian
himself declined to certify the records, which were essentially
billing statements that omitted a good deal of the information
required of formal treatment records, but testimony at the
hearing indicated that those deficiencies were normal in the
milieu of harness racing. The records could accordingly be
admitted to make whatever factual findings could be drawn from
the sparse information contained in them (see e.g. Matter of
Szczepaniak v City of Rochester, 101 AD3d 1620, 1621 [2012];
Matter of Shuman v New York State Racing & Wagering Bd., 40 AD3d
385, 388 [2007]).

      That being said, the pivotal question in this case is
whether substances were administered to horses within prohibited
time frames, and the records lacked "substantial probative
evidentiary value" on that key issue (Matter of Brown v Murphy,
43 AD2d 524, 525 [1973]). The records associate a date with each
entry, but fail to indicate what the date represents. The only
explanatory evidence in the record from anyone associated with
the veterinary practice was in the cover letter transmitting the
records to Trapanese, which advised that the dates listed in the
records could reflect "the day that a treatment was prescribed,
[the] horse was treated or [the] medication dispensed." A
veterinarian testifying on petitioner's behalf further stated
                                -4-                522395

that the lack of specificity in the records left one unable to
"tell whether [the various substances] were dispensed or
administered in all cases." Leveson nevertheless speculated, by
simply relying on custom, that the records gave the dates of
treatment, but made no effort to grapple with the affirmative
statement of the practice that such was not the case. In fact,
his efforts were limited to a telephone conversation with
petitioner in which petitioner reiterated that the records
contained billing errors with regard to the timing of
treatments.2 In short, while respondent was free to consider the
records, they do not constitute substantial evidence for the
essential finding that horses in petitioner's care were
administered substances within the prohibited time frames
(see Matter of Laterza v New York State Racing & Wagering Bd., 68
AD3d 1509, 1512-1513 [2009]; cf. Matter of Fusco v New York State
Racing & Wagering Bd., 88 AD3d 1240, 1241-1242 [2011], lv
denied 18 NY3d 809 [2012]; Matter of Shuman v New York State
Racing & Wagering Bd., 40 AD3d at 386-388). The determination,
which was based upon the records, must therefore be annulled.

      Petitioner's remaining contentions, to the extent they are
not academic in light of the foregoing, have been examined and
found to lack merit.

        Lynch, Rose and Mulvey, JJ., concur.


McCarthy, J.P. (dissenting).

        I agree with the majority that if the dates found on




    2
        Respondent asserts that petitioner admitted in the
telephone conversation with Leveson to administering Robinul
(also known as glycopyrrolate) to many horses three "days away
from the race" in violation of the 96-hour rule set by 9 NYCRR
4120.2 (g). The Hearing Officer did not explicitly rely upon
that conversation, which is, in any case, far from clear as to
when that substance was administered.
                              -5-                522395

veterinary records1 regarding specified forms of veterinary care
represent the dates upon which such treatment was administered,
those records, along with other evidence, chronicle 1,717
violations by petitioner of rules prohibiting the administration
of specified substances to a horse within specified windows prior
to a race. The majority, however, finds that a reasonable mind
cannot reach the conclusion that those dates convey when
treatment occurred. As a result, the majority annuls the
entirety of respondent's determination. In contrast, I find that
the inference that respondent made that the dates listed next to
specified veterinary care represent the dates that such care was
administered to be reasonable and plausible. That conclusion
requires confirmance and, accordingly, I respectfully dissent.

      Absent some other infirmity, this Court is bound to confirm
respondent's determinations regarding petitioner's violations if
they are supported by substantial evidence, that is if the
evidence supporting those determinations is that which "a
reasonable mind may accept as adequate to support [the relevant]
conclusion[s] or ultimate fact[s]" (Matter of Shuman v New York
State Racing & Wagering Bd., 40 AD3d 385, 385 [2007] [internal
quotation marks and citation omitted]). Substantial evidence is
a minimal standard that requires less than evidence beyond a
reasonable doubt, less than overwhelming evidence, less than
clear and convincing evidence and less than proof by a


    1
        Two distinct forms of veterinary records were submitted
into evidence. The first set of records provides a
"chronological history" for each horse that the veterinarian
cared for, which ascribed dates to noted forms of veterinarian
care. The second set of records provided billing information for
each horse cared for with dates and prices being ascribed to a
description of the veterinary service provided. Generally, by
comparing the dates in the two forms of records, one can also
compare the descriptions of the care/service provided.
Considering the different information provided in each set of
records in regard to the descriptions associated with dated
entries, the records often provide supplemental information to
one another in elaborating the care provided to a horse on a
particular day.
                              -6-                522395

preponderance of the evidence (see Matter of FMC Corp. [Peroxygen
Chems. Div.] v Unmack, 92 NY2d 179, 188 [1988]; Matter of Shuman
v New York State Racing & Wagering Bd., 40 AD3d at 386).
Substantial evidence "demands only that a given inference is
reasonable and plausible, not necessarily the most probable"
(Matter of Miller v DeBuono, 90 NY2d 783, 784 [1997]; see Matter
of Shuman v New York State Racing & Wagering Bd., 40 AD3d at
386). Where "room for choice" exists in the inferences to be
drawn from evidence, this Court has no power to preference its
own interpretation over that of the administrative agency tasked
with the determination (see Matter of Berenhaus v Ward, 70 NY2d
436, 444 [1987] [internal quotation marks and citation omitted]).
This great deference accorded to such an agency determination
derives from the Legislature's decision to task an agency with
expertise in the relevant law and regulations – rather than a
court of general jurisdiction that lacks such expertise – with
the authority to initially resolve legal disputes (see Matter of
Shuman v New York State Racing & Wagering Bd., 40 AD3d at 388;
Matter of Finger Lakes Racing Assn. Inc. v State of N.Y. Racing &
Wagering Bd., 34 AD3d 895, 897 [2006], lv denied 8 NY3d 810
[2007]).

      The proof relevant to the interpretation of the veterinary
records consisted of expert proof regarding the customary
practice of veterinarians, the records themselves and the proof
regarding petitioner's admissions regarding veterinary treatment.
At the hearing, Joel Leveson, the director of investigations for
respondent, was found qualified to testify as an expert on "the
use of equine medication and the illegal use of equine
medication."2 In describing his professional work, Leveson
explained that he dealt with veterinarians "every day." Leveson
further testified that he was familiar with the customary
practice of veterinarians and that veterinarians treating
standard bred horses customarily created records recording the
drug that was administered to a horse and the date upon which it


    2
        Leveson gave lengthy testimony regarding his
qualifications, relating to his current job, his work in the
horse-racing industry and his having been "a professional
horseman from age [18]."
                              -7-                522395

was administered. Thus, when respondent considered veterinary
records and found that dates listed next to descriptions of
veterinary care represented dates upon which such care was
administered, it relied on expert evidence establishing that such
an interpretation was consistent with customary practice within
the veterinary industry.

      Turning to the veterinary records3 themselves, the records
are prefaced by a cover letter that explains that the dates
contained within the records represent "the day that a treatment
was prescribed, horse was treated or medication dispensed for the
horse." Contrary to the majority's description of the records,
however, this is not the only context for the individual record
entries. Each dated entry for a horse's "chronological history"
is accompanied by a description/comments section containing
further information. For example, the records indicate an entry
for the horse Blue Bird Dream on December 15, 2010 with the
comment/description of "treatment with Bute/Robaxin complex for
musculoskelatal infl." An ordinary meaning of the term
"treatment" is "an instance of treating someone or something,"
which would indicate that the records chronicled an instance of
Blue Bird Dream being treated with robaxin (Merriam-Webster
Online Dictionary, http://www.merriam-webster.com/dictionary/
treatment [accessed Oct. 4, 2016]). Similarly, the
description/comments section for Blue Bird Dream's veterinary
care occurring on January 11, 2011 notes "injection" and then
describes a substance. An ordinary meaning of "injection" is "an
act or instance of injecting," which would indicate that Blue
Bird Dream received an injection on that date (Merriam-Webster
Online Dictionary, http://www.merriam-webster.com/dictionary/
injection [accessed Oct. 4, 2016]). With this in mind, in order
for the majority to reach its conclusion, it necessarily finds


    3
        The relevant veterinarian was located in New Jersey.
Notably, licensed veterinarians in New Jersey are legally
required to ensure that patient records "accurately reflect the
treatment or services rendered" (NJAC 13:44-4.9 [a]). A
reasonable mind could find, as a general matter, that a person
legally charged with a duty to maintain accurate records is more
likely to do so than someone without such a duty.
                               -8-                522395

that no reasonable mind could conclude that "treatment" meant
that a horse was treated or that "injection" meant that a horse
was injected. I disagree since a reasonable mind could reach
such conclusions by ascribing those terms their plain meanings.

      More generally, an examination of the records provides a
reasonable basis to conclude that the veterinarian's default
record-keeping practice was in accordance with custom: dates
associated with care represented the administration of care
unless otherwise specified. For example, Blue Bird Dream raced
on October 14, 2010. The veterinary records contain an entry for
Blue Bird Dream for the next day, October 15, 2010. The
description/comments state "race performance exam." Notably, the
description/comments do not explicitly state whether an exam was
administered, prescribed or dispensed. Nonetheless, a reasonable
mind would conclude that an exam actually occurred on that day,
as it would be absurd to conclude that an exam was prescribed or
dispensed.

      As a second example indicating that the veterinarian's
default procedure was to record the date that care was
administered, the horse Vertical Horizon has a single
"chronological history" entry for January 22, 2011 with the
description/comments "Larynx . . . acupuncture." Turning to the
veterinary billing records, Vertical Horizon has a single billing
entry for January 22, 2011 with the note "inject throat." The
billing records corroborate that, despite the fact that the
veterinary records did not explicitly specify that "Larynx . . .
acupuncture" was care administered on the date indicated, such
treatment was administered rather than prescribed or dispensed.
From the aforementioned examples, a reasonable mind could
conclude that the veterinarian's default record-keeping
procedure, consistent with customary practice within the
industry, recorded the dates of the administration of care unless
otherwise specified in the description/comments.4



     4
        None of the charges at issue are based on veterinary
records specifying a form of veterinary care that was a
prescription or a dispensement.
                              -9-                522395

      Finally, Leveson's recorded phone call with petitioner
offers further proof substantiating that the veterinary records
recorded dates of actual treatment as well as independent proof
supporting all of the violations regarding the administration of
glycopyrrolate-robinul. During that conversation, petitioner
explained that "when the horses train, they get treated," and
when asked to explain what training meant, he explained that
training is "a workout." Petitioner then described that such
workouts occurred "[three] days out." Thereafter, petitioner
agreed that "robinul and robaxin" were given to the horses on the
same day as one another, and when Leveson then stated "[three]
days away from the race. Am I saying the right thing?",
petitioner replied "ye[s]." Undoubtedly, room for choice exists
as to the interpretation of this phone call, but a reasonable
mind could conclude that petitioner acknowledged administering
robinul and robaxin to his horses three days prior to their
respective races, which would necessarily amount to patent
violations of the ban on administering robinul within 96 hours of
a race (see 9 NYCRR 4120.2 [g] [8]).

      More generally and more importantly, the phone conversation
provides further proof supporting the conclusion that the
relevant veterinary record entries recorded dates upon which
treatment was administered. What is unambiguous about the phone
conversation is petitioner's acknowledgment that the horses were
treated with robinul and robaxin in the lead-up to races. That
acknowledgment accords with respondent's conclusion that the
relevant dates in the veterinary records represented treatment
dates given that the dates associated with robaxin treatment
entries often preceded the respective horses' races by less than
three days.5


    5
        In contrast, it makes little sense to conclude that the
veterinarian records would record that a veterinarian was
consistently prescribing treatments during prohibited windows for
substances intended to be administered after a race. This is
particularly true given that veterinary records show repeated
entries for care on days immediately following a race, in which
such prescriptions could have been provided if they were intended
to be administered after the race and outside of a prohibited
                              -10-                 522395

      The foregoing proof provides substantial evidence to
support respondent's determination (see Matter of Case v New York
State Racing & Wagering Bd., 61 AD3d 1313, 1314 [2009], lv denied
13 NY3d 705 [2009]; Matter of Shuman v New York State Racing &
Wagering Bd., 40 AD3d at 388; Matter of Dutrow v New York State
Racing & Wagering Bd., 18 AD3d 947, 947-948 [2005]; Matter of
Sachs v New York State Racing & Wagering Bd., Div. of Harness
Racing, 1 AD3d 768, 772 [2003], lv denied 2 NY3d 706 [2004]).
Respondent made eminently reasonable determinations in evaluating
the proof, making factual findings and reaching its
determination. Since room for choice existed as to the
inferences to draw from the proof provided and respondent made
reasonable and plausible inferences, this Court has no power to
replace respondent's conclusions with ones that it would prefer.
Accordingly, and considering that petitioner's remaining
arguments are also without merit, I would confirm respondent's
determination.



      ADJUDGED that the determination is annulled, without costs,
and petition granted.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court




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