Opinion
November 16, 1989
Appeal from the Supreme Court, New York County (Beverly Cohen, J.).
Petitioner does not dispute the finding of the Racing Board to the effect that she claimed a horse named Accordando on August 22, 1988, at the Saratoga Race Track, in the name of Dr. Stephen Chazin. Actually, she was claiming the horse for Anthony Vaccaro. Instead, she challenges the Racing Board's determination on procedural grounds.
Annulment of the determination is not warranted on the ground that the Board's determination rests on hearsay evidence. The Court of Appeals has specifically recognized an investigating officer's report as the type of hearsay evidence that may be admitted at an administrative hearing consistently with due process (Matter of Gray v Adduci, 73 N.Y.2d 741, 742). The evidence against a respondent in an administrative proceeding may consist entirely of hearsay, the legal residuum rule having been abandoned (300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 N.Y.2d 176, 180, n).
The determination is not invalid because an attorney for the Racing Board served as Hearing Officer. The petitioner's failure to raise this objection at the hearing precludes review in an article 78 proceeding (Matter of Hopkins v Blum, 58 N.Y.2d 1011, 1014). Furthermore, she has not presented any evidence that the Hearing Officer stood to benefit from proceedings against her, nor has she shown any evidence of bias on the part of the Hearing Officer (Matter of Claffey v Commissioner of Educ., 142 A.D.2d 845, 846). In this respect, Adika v Corbisiero ( 154 A.D.2d 299) is distinguishable. There, the record showed that the Hearing Officer was not only counsel to the Racing Board, but supervisor to the Racing Board member who presented the Board's case at that hearing.
Concur — Ross, J.P., Carro, Asch, Kassal and Smith, JJ.