Miller v. Lomenzo
| Decision Date | 14 February 1974 |
| Citation | 43 A.D.2d 997,352 N.Y.S.2d 260 |
| Parties | In the Matter of Delvin MILLER, Petitioner, v. John P. LOMENZO, as Secretary of State of the State of New York, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Jesse Moss, New York City (Sue Wimmershoff Caplan, New York City, of counsel), for petitioner.
Louis J. Lefkowitz, Atty. Gen. (William J. Kogan, Albany, of counsel), for respondents.
Before STALEY, J.P., and GREENBLOTT, COOKE, SWEENEY and KANE, JJ.
Proceeding pursuant to CPLR article 78 () to review a determination of the New York State Harness Racing Commission, which sustained the action of the Presiding Judge and Associate Judges at Roosevelt Raceway in changing the finish position of the standardbred horse, Modern Yankee, from second to third place.
Modern Yankee, a filly driven by Delvin Miller, participated in the 'Proximity Trot', a non-betting trotting race, at Roosevelt Raceway on September 20, 1971, finishing in second position. Mr. Nuhn, the Presiding Judge, testified that he saw her go off the required trotting gait and into one of racking or pacing at about the sixteenth pole, that she continued through the stretch until 100 feet from the wire when the driver 'took her back', that she returned to trotting 50 feet from the wire and continued trotting going 'through the wire'. This irregularity was discussed with Murtha and MacMurray, the two Associate Judges, and the three unanimously decided to leave Modern Yankee in second position.
Murtha and MacMurray reviewed the video tape of the race on September 21. On the evening of September 22, the three judges viewed the film at least 10 and perhaps upwards of 20 times, on which occasion it was noted that the filly had paced longer than they had assumed and that Miller had not taken her back immediately and had not made enough effort when she first went off trotting to bring her back on stride. The judges then voted unanimously to change the order of finish and to place Modern Yankee third instead of second. The Harness Racing Commission, following the recommendation of the hearing officer, confirmed the decision of the judges.
Under the rules and regulations of the Harness Racing Commission, the Presiding Judge and Associate Judges have authority to determine all questions of fact relating to the race and to investigate every apparent rule violation (19 NYCRR 85.6). Among their duties, they are to closely observe the performance of all competing horses and drivers to determine the result of every race...
To continue reading
Request your trial
-
Polskin v. Board of Ed. of Kinderhook Central School Dist., Columbia County
...222, 356 N.Y.S.2d 833, 313 N.E.2d 321; Matter of Sowa v. Looney, 23 N.Y.2d 329, 296 N.Y.S.2d 760, 244 N.E.2d 243; Matter of Miller v. Lomenzo, 43 A.D.2d 997, 352 N.Y.S.2d 260). Nor can it be said that the punishment is 'so disproportionate to the offense, in the light of all the circumstanc......
-
Cramer v. New York State Racing Ass'n
...NYCRR 4039.5; part 4013; see also, Matter of Kaufman v. Sarafan, 59 N.Y.2d 855, 465 N.Y.S.2d 924, 452 N.E.2d 1252; Matter of Miller v. Lomenzo, 43 A.D.2d 997, 352 N.Y.S.2d 260). Notably, petitioners are not persons who could validly make objections to the Stewards' decisions under the Board......
-
Evans v. Planned Parenthood of Broome County, Inc.
... ... We do not agree. In our view, there is no requirement that the plaintiff prove a tortious act without the State (see 1 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 302.09) ... Once the requirements of CPLR 302 (subd. (a), pars. 3(i) or 3 (ii)) have been met, the only ... ...
-
MacRae v. New York State Racing and Wagering Bd.
...down excessively by the pace that he set. With such support as this, the board's determination must be confirmed (Matter of Miller v. Lomenzo, 43 A.D.2d 997, 352 N.Y.S.2d 260). As to the forfeiture of the bond, however, we reach a contrary result. Petitioner's ability to obtain a hearing on......