Parker v. Corbisiero

Determination of the respondent New York State Racing and Wagering Board, dated July 1, 1991, which suspended petitioner’s license as a harness driver for 30 days for driving with lack of effort, is unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court, by order of the Supreme Court, New York County, Kristin Booth 270 Glen, J., entered September 10, 1991), is dismissed, without costs. While the record discloses divergent views of what took place during the race in question, respondent’s determination that petitioner drove with lack of effort in violation of 9 NYCRR 4117.4 (p) is supported by substantial evidence and "must be sustained irrespective of whether a similar quantum of evidence is available to support another conclusion” (Matter of Warner v New York State Racing & Wagering Bd., 99 AD2d 680, 681; see also, Matter of LaChance v Corbisiero, 147 AD2d 80, 87, lv denied 74 NY2d 611). Such substantial evidence was provided by the testimony of the presiding judge at the race that petitioner, inter alia, did not rush to "cover” the gap between his horse and the preceding horse, struck the horse "very sparingly and very lightly” with the whip, did not begin using the whip until he was driving down the backstretch toward the three quarter pole, and lost the race by only five lengths despite being behind seven to eight lengths at the top of the stretch, indicating to the judges that petitioner could have finished the race in a better position than last had he driven aggressively throughout. Although petitioner was driving his horse for the first time, it is undisputed that he is a talented, aggressive driver, with over 20 years of driving experience, and has frequently won races with horses that are rough gaited and that he had not previously driven or even warmed up. Concur — Sullivan, J. P., Carro, Wallach, Kupferman and Kassal, JJ.