IN RE: Todd A. PLETCHER (2026)

MEMORANDUM AND JUDGMENT

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, among other things, suspending petitioner's license to participate in thoroughbred racing for 14 days.

Capensis, a thoroughbred racehorse trained by petitioner, placed sixth in the tenth race at Saratoga Race Course on July 30, 2022.  A postrace blood sample taken from the horse was sent to the New York State Drug Testing and Research Program and tested positive for phenylbutazone (hereinafter bute), a legal substance permitted below the specified concentrated threshold of 0.3 mcg/ml in plasma (see 9 NYCRR 4043.3[a][26] ).  The sample contained 1.56 mcg/ml.  Petitioner sought testing of a split-sample, which was sent to the Kenneth L. Maddy Equine Analytical Chemistry Laboratory in California.  The results of that testing confirmed the presence of bute at 1.8 mcg/ml.

Based upon the overage, respondent, through the state steward, issued a notice to petitioner suspending him from participating in thoroughbred racing for 14 days and imposed a fine of $2,000.  Petitioner filed an appeal and a hearing was held.  The Hearing Officer thereafter determined that petitioner violated the equine drug threshold rule and recommended that petitioner's license to participate in thoroughbred racing be suspended for 14 days, that he be fined $2,000 and that Capensis be disqualified from the race that precipitated the postrace testing.  Respondent adopted the Hearing Officer's findings of fact and conclusions of law and affirmed the decision.  Petitioner then commenced this CPLR article 78 proceeding challenging respondent's determination and the enhanced penalty, which proceeding has been transferred to this Court pursuant to CPLR 7804(g).

Petitioner argues that respondent did not meet its burden to demonstrate a violation of the restrictions on bute concentration in Capensis.  Petitioner specifically contends that respondent failed to introduce competent evidence establishing the reliability of the testing that was conducted on the postrace samples that purportedly demonstrated the presence and concentration of bute.  Particularly, petitioner challenges the admission and reliance on a letter signed by, among others, George Maylin, the Director of the New York State Drug Testing and Research Program, providing the result of testing from the postrace sample.  The objection lodged by petitioner's counsel to the letter was that it could not be properly admitted through Scott Palmer, the medical director for respondent, as he had not reviewed the testing data and was not involved in the testing process.  Similarly, in objecting to the letter received by respondent concerning the split-sample testing from the California laboratory, counsel raised the same objection and noted that Palmer “probably [did not] have any questions about the underlying testing data.”  Initially, we agree with respondent that petitioner's objections were insufficient to preserve petitioner's challenge to the validity of the scientific testing that was performed since he did not assail the chain of custody or methodology employed in either test (see Matter of Monje v. Geoghegan, 108 A.D.3d 957, 957–958, 969 N.Y.S.2d 612 [3d Dept 2013];  Matter of Ortiz v. Fischer, 64 A.D.3d 1111, 1112, 882 N.Y.S.2d 669 [3d Dept 2009] ).¹  However, although we find that a direct challenge to the scientific methodology of the testing is unpreserved, the admission and reliance on those letters raises concerns regarding the fundamental fairness of the hearing, which underpins the substance of petitioner's appeal.

To be sure, in most instances, “hearsay evidence can be the basis of an administrative determination and, if sufficiently probative, it alone may constitute substantial evidence” (Matter of 670 Riv. Realty Corp. v. New York State Div. of Hous. & Community Renewal, 242 A.D.3d 543, 544, 245 N.Y.S.3d 178 [1st Dept 2025] [internal quotation marks, brackets and citation omitted];  see Matter of ExceedLLC, LLC v. Department of State Div. of Licensing Servs., 233 A.D.3d 1392, 1394, 224 N.Y.S.3d 696 [3d Dept 2024] ).  However, “[a] court reviewing the substantiality of the evidence upon which an administrative agency has acted exercises a genuine judicial function and does not confirm a determination simply because it was made by such an agency” (300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 181, 408 N.Y.S.2d 54, 379 N.E.2d 1183 [1978];  see Matter of Diotte v. Fahey, 97 A.D.2d 653, 653, 469 N.Y.S.2d 191 [3d Dept 1983] ).  The question is whether such proof is sufficiently relevant and probative so as to constitute substantial evidence on its own (see People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139, 495 N.Y.S.2d 332, 485 N.E.2d 997 [1985];  Matter of Sleiman v. New York State Cent. Register of Child Abuse & Maltreatment, 193 A.D.3d 1323, 1323, 147 N.Y.S.3d 755 [4th Dept 2021], lv denied 38 N.Y.3d 905, 2022 WL 1222702 [2022];  Matter of Kordasiewicz v. Erie County Dept. of Social Servs., 119 A.D.3d 1425, 1426, 990 N.Y.S.2d 750 [4th Dept 2014];  Matter of Saporito v. Carrion, 66 A.D.3d 912, 912–913, 886 N.Y.S.2d 635 [2d Dept 2009] ), akin to “the standard of sufficiency such as to require a court to submit it as a question of fact to a jury” (300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d at 181, 408 N.Y.S.2d 54, 379 N.E.2d 1183).  Thus, we must account for the nature of the hearsay proof offered in assessing whether an administrative hearing was inherently fair (see Matter of Tufariello v. Barry, 60 A.D.2d 813, 814, 401 N.Y.S.2d 210 [1st Dept 1978];  Matter of Strain v. Sarafan, 57 A.D.2d 525, 525, 393 N.Y.S.2d 572 [1st Dept 1977];  see also Matter of Fusco v. New York State Racing & Wagering Bd., 88 A.D.3d 1240, 1243, 931 N.Y.S.2d 439 [3d Dept 2011], lv denied 18 N.Y.3d 809, 2012 WL 996693 [2012];  Matter of Shuman v. New York State Racing & Wagering Bd., 40 A.D.3d 385, 388, 835 N.Y.S.2d 569 [1st Dept 2007] ).

On that, it is of particular note that the sole proof relied upon by respondent to establish that the bute concentration from postrace samples exceeded the permissible limit were the letters from the New York and California laboratories.  The letter from the New York laboratory indicated the overage in bute concentration but did not provide for the method of testing, and although the method of testing was provided in the letter from the California laboratory, neither letter gave any indication as to the reliability or general acceptance of the tests utilized to ascertain the presence and concentration of bute in the postrace samples (see Matter of Brown v. Murphy, 43 A.D.2d 524, 525, 348 N.Y.S.2d 777 [1st Dept 1973];  compare Matter of Dutrow v. New York State Racing & Wagering Bd., 97 A.D.3d 1034, 1036, 949 N.Y.S.2d 241 [3d Dept 2012], appeal dismissed 19 N.Y.3d 1064, 955 N.Y.S.2d 541, 979 N.E.2d 800 [2012];  Matter of Fusco v. New York State Racing & Wagering Bd., 88 A.D.3d at 1242, 931 N.Y.S.2d 439;  Matter of Czermann v. New York State Racing & Wagering Bd., 68 A.D.3d 1580, 1581, 891 N.Y.S.2d 721 [3d Dept 2009], lv denied 14 N.Y.3d 709, 2010 WL 1794970 [2010];  Matter of Laterza v. New York State Racing & Wagering Bd., 68 A.D.3d 1509, 1510, 892 N.Y.S.2d 253 [3d Dept 2009];  Matter of Case v. New York State Racing & Wagering Bd., 61 A.D.3d 1313, 1314, 877 N.Y.S.2d 526 [3d Dept 2009], lv denied 13 N.Y.3d 705, 2009 WL 2924116 [2009];  see also Matter of Dutrow v. New York State Racing & Wagering Bd., 18 A.D.3d 947, 947, 795 N.Y.S.2d 106 [3d Dept 2005] ).²  The Hearing Officer noted that petitioner could call Maylin if he intended to challenge the testing results, however, the burden lies with respondent to “make an initial showing that a properly conducted test resulted in a positive finding of a prohibited substance” (Matter of Case v. New York State Racing & Wagering Bd., 61 A.D.3d at 1314, 877 N.Y.S.2d 526;  see Matter of Mosher v. New York State Racing & Wagering Bd., 74 N.Y.2d 688, 690, 543 N.Y.S.2d 374, 541 N.E.2d 403 [1989] ).  Thus, relying solely on the hearsay proof in this case to establish the rule violation rendered the hearing fundamentally unfair under the circumstances presented and persuades us to remand the matter for a new hearing (see Matter of Riverton Funeral Home v. Whalen, 63 A.D.2d 887, 888, 405 N.Y.S.2d 704 [1st Dept 1978];  Matter of Tufariello v. Barry, 60 A.D.2d at 814, 401 N.Y.S.2d 210;  Matter of Strain v. Sarafan, 57 A.D.2d at 525, 393 N.Y.S.2d 572;  Matter of Brown v. Murphy, 43 A.D.2d at 525, 348 N.Y.S.2d 777;  Matter of Erdman v. Ingraham, 28 A.D.2d 5, 8–9, 280 N.Y.S.2d 865 [1st Dept 1967];  compare Matter of Warner v. New York State Racing & Wagering Bd., 99 A.D.2d 680, 681, 471 N.Y.S.2d 922 [4th Dept 1984] ).

Petitioner also argues that respondent's determination must be annulled and vacated because it convicts and punishes him for violating a rule that was not adopted pursuant to the rulemaking and notice requirements of the State Administrative Procedure Act owing to its failure to submit a notice of adoption for publication in the State Register (see State Administrative Procedure Act § 202[5] ).  However, in his petition, petitioner's State Administrative Procedure Act argument is directed at the lack of a public hearing.  Accordingly, the argument he now raises is not properly before us (see Matter of Independent Health Assn. v. New York State Dept. of Social Servs., 210 A.D.2d 638, 641, 619 N.Y.S.2d 387 [3d Dept 1994], lv denied 87 N.Y.2d 803, 639 N.Y.S.2d 310, 662 N.E.2d 791 [1995];  Matter of R.W. Granger & Sons v. State of N.Y. Facilities Dev. Corp., 207 A.D.2d 596, 598, 615 N.Y.S.2d 509 [3d Dept 1994] ).

In light of our determination, petitioner's arguments pertaining to the Hearing Officer demonstrating bias at the hearing, the need for an adverse inference and the discipline imposed are rendered academic.

ADJUDGED that the determination is annulled, without costs, petition granted in part, and matter remitted to respondent for a new hearing.

FOOTNOTES

1.   Although petitioner did not expressly challenge the scientific methodology of the testing, he did not concede the findings of the tests during the hearing and objected to respondent's proposed stipulations to that effect (compare Matter of Guarino v. New York State Racing & Wagering Bd., 45 A.D.3d 1096, 1097, 845 N.Y.S.2d 858 [3d Dept 2007], lv denied 10 N.Y.3d 730, 852 N.Y.S.2d 826, 882 N.E.2d 396 [2008];  Matter of Zito v. New York State Racing & Wagering Bd., 300 A.D.2d 805, 807, 752 N.Y.S.2d 109 [3d Dept 2002], lv denied 100 N.Y.2d 502, 760 N.Y.S.2d 765, 790 N.E.2d 1194 [2003] ).  However, petitioner conceded that he was not challenging the chain of custody of the postrace samples from Capensis.

2.   Although, in the context of this administrative proceeding, the records in question were not required to be accompanied by testimony (see generally State Administrative Procedure Act § 306), a proper foundation must still be laid to establish that the records were sufficiently reliable and probative.  Hence, in the absence of any explanation on the reliability of the testing process utilized in New York or California and the acceptance of those processes in the scientific community, the foundation of the stated results in both letters was lacking.

McShan, J.

Garry, P.J., Reynolds Fitzgerald, Powers and Mackey, JJ., concur.