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THE NYS GAMING COMMISSION RELIED ON HEARSAY TO FIND THAT PETITIONER, A RACE-HORSE TRAINER, VIOLATED A LIMIT IMPOSED ON THE AMOUNT OF A DRUG WHICH MAY BE ADMINISTERED TO A RACE HORSE; THE HEARSAY LETTERS FROM TWO LABORATORIES WHICH TESTED THE HORSE’S BLOOD CONSTITUTED INSUFFICIENT EVIDENCE OF THE VIOLATION BECAUSE THE LETTERS DID NOT DESCRIBE THE TESTING METHODS AND THE RELIABILTIY OF THOSE TESTING METHODS; MATTER REMITTED (THIRD DEPT).

The Third Department, annulling the NYS Gaming Commission’s ruling and remanding the matter for a new hearing, determined the Commission relied on hearsay to find that petitioner (a race-horse trainer) violated a rule limiting the amount of a drug (bute) which can be administered to a race horse. The petitioner brought an Article 78 proceeding arguing that the ruling was improperly based upon hearsay. The Article 78 proceeding was transferred to the Third Department:

Petitioner … 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. … [P]etitioner challenges the admission and reliance on a letter … 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 … the medical director for respondent … as he had not reviewed the testing data and was not involved in the testing process. … [S]n objecting to the letter received by respondent {from a second laboratory], counsel raised the same objection … . * * *

… [I]t 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 … . … [R]elying 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 … . Matter of Pletcher v New York State Gaming Commission, 2026 NY Slip Op 01435. Third Dept 3-12-26

Practice Point: Although an administrative agency may base a ruling on hearsay, here hearsay letters from laboratories describing the results of testing for a drug in a race horse’s blood did not rise to the level of “substantial evidence” because the testing methods and the reliability of those methods were not described.

 

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