Proof at the subsequent hearing included, among other things, testimony of respondent's investigator and its expert as well as various documents. However, petitioner's objection to respondent's offer of the horse's veterinary records from November 2006 and December 2006 was sustained by the Hearing Officer and, without those records, the Hearing Officer, while recommending upholding the violation and penalty regarding Clenbuterol, further recommended dismissal of the additional charges related to Robaxin and Naquasone. On review, respondent determined that the veterinary records should have been admitted into evidence, and thus remanded the matter to the Hearing Officer to admit those records and receive additional proof with respect thereto. The Hearing Officer admitted the records, but received no other evidence. As a result of the failure to develop the record as previously ordered, respondent directed a further hearing unless the parties stipulated to the nature and pharmacological properties of the pertinent drugs.
The parties did not stipulate and the original Hearing Officer had retired; accordingly, a further hearing was conducted before a new hearing officer in November 2009. The Hearing Officer determined that petitioner had improperly administered Robaxin and Naquasone on five occasions and recommended that, in addition to the penalty for the original violation related to the use of Clenbuterol, petitioner's license be revoked for five years. Respondent adopted the Hearing Officer's report and imposed the recommended penalty. Petitioner then commenced this CPLR article 78 proceeding, which Supreme Court transferred to this Court (see CPLR 7804 [g]).
Petitioner argues that substantial evidence does not support respondent's determination that he violated the rules prohibiting administering Robaxin and Naquasone within 72 hours of a
Petitioner contends that respondent violated its own rules when it remanded the matter to the Hearing Officer for additional proof. We have previously held that respondent "has the power to take additional evidence before a final determination of issues," and that it is not error to "reopen[ ] [a] hearing for the purpose of further fleshing out the facts" (Matter of Vinci v Corbisiero, 174 A.D.2d 893, 894 ). Respondent's action provided for further development of facts and was not an order in violation of 9 NYCRR 5402.8 (c), which prohibits respondent from directing that the Hearing Officer make a specific finding of fact or conclusion of law. We are unpersuaded by petitioner's contention that respondent violated its own rules, and by his further assertion that he was denied a fair and impartial hearing.
Next, we consider petitioner's assertion that it was error for respondent to receive the veterinary records into evidence. Hearsay evidence is admissible into evidence at administrative hearings and may, under appropriate circumstances, constitute substantial evidence (see Matter of D'Souza v New York State
While the penalty is severe, petitioner has a history of horse drugging violations—including eight prior violations—and, under such circumstances, the penalty is "not so disproportionate to the offense as to be shocking to one's sense of fairness" (Matter of Czermann v New York State Racing & Wagering Bd., 68 A.D.3d 1580, 1583 , lv denied 14 N.Y.3d 709  [internal quotation marks and citation omitted]).
Adjudged that the determination is confirmed, without costs, and petition dismissed.