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Tuesday, April 09, 2013

Johnny V. Phone Home

Following up on yesterday's post, specifically the matter of a lawsuit filed against NYRA by Zayat Stables in 2008 over career-ending injuries suffered by its horse Phone Home after a starting gate accident, our buddy Steve Zorn, the esteemed proprietor of the incisive The Business of Racing blog, commented

Note that frequent NYRA antagonist Karen Murphy was the lawyer for Zayat in the case you cited. Now she's (a) representing Rudy Rodriguez on the latest Banamine positive while at the same time (b) serving as an adviser to NYRA Board Chairman John Skorton. Seems to me that NY Code of Professional Responsibility Sec. 1.7 (Conflicts of Interest) has something relevant to say there.

Also, since no further proceedings in the Zayat case are listed on the court docket, one presumes that NYRA settled after the Appellate Division reversed the trial court's dismissal of the Zayat complaint. NYRA, by the way, was using the legal equivalent of a seven-pound bug as its lawyer, but that may have been dictated by its insurer.
Let's take that one at a time.  Indeed, Ms. Murphy is the attorney behind Rudy Rodriguez' staunch insistence that a broken surveillance camera operated by NYRA allowed an intruder to go "up to the filly’s stall and put a tube down her throat,” thus resulting in a third positive, and one 20 times the allowable level, for the anti-inflammatory medication Banamine. 
  “It’s an enormous dose given within 24 hours of a race – somebody got to the horse,” Murphy said. “This is a tampering case; I’m 100 percent certain of this.” [DRF]
And the point about the conflict of interest here is surely well taken.  I mean, that's kinda like if, say, an aide to the governor of New York had financial interests in drilling companies with an interest in fracking!  Or if an adviser to another governor of New York was a paid lobbyist for a company seeking a racino license!  Unimaginable!!

Regarding the Zayat case however, Mr. Zorn surmises incorrectly that the case has been settled.  In fact, the Supreme Court of Queens County threw out NYRA's second motion for summary judgment just in January on March 18; on the grounds that there are "triable issues of fact, summary judgment is unwarranted and a trial is necessary."

The decision explains that NYRA produced two affadavits in an attempt to convince the Court that "the conduct of defendant's employees did not increase the usual risks that are inherent in the sport of horse racing."  The testimony was given by John Velazquez, the jockey aboard Phone Home...or rather, not aboard Phone Home......and an assistant starter by the name of Gustavo Rodriguez.  Besides his insistence that he never stated he was OK for the race to start, and said "over and over again" to Rodriguez (standing "a half a foot away") that he wasn't ready, Johnny V. also made some assertions that I find rather startling: 
Mr. Velasquez testified inter alia that: it is very common for a horse to be injured after the start is taken when its jockey has been dismounted....races are commenced despite the fact that a horse or jockey is not ready “all of the time”.........miscommunications between jockeys and starters are quite common because of the rapid speed with which the starting gate crew must release the horses from the starting gate, failed communications between the assistant starters, the head starter, and the jockeys “happens plenty,” and before Phone Home’s injury, he had previously made complaints to the stewards regarding the lack of communication at the starting gate.
Hmmm, you don't say?  I don't know whether or not Velazquez was coached for his testimony, or if the legal strategy was devised by the seven-pound bug lawyer referred to above.  And I understand NYRA is trying to defend itself in court, and sometimes defendants will find themselves saying awkward things in order to do so.  But I would think that NYRA would go out of its way to avoid public testimony on its behalf by a respected jockey to the effect that profound problems at the starting gate are endemic at its tracks.  And I would think that they would be hearing from horsemen and horseplayers with concerns about the same.

And this lawsuit will apparently proceed to the "necessary" trial.

 -  James Odato writes in the Times Union that "many in the capitol have observed" that the arrest of Senator Malcolm Smith could aid prosecutors investigating the AEG scandal.  And then he doesn't really elaborate on how, other than quoting Inspector General Joseph Fisch, who wrote the scathing report (and if you've never seen the 316 page report, you can do so here), to the effect that: "you want to see if [Smith] has information about people of similar status — or above his rank."  So we'll see, but I think it's one of those non-news news stories, mostly summarizing events in the past, perhaps for emphasis by the reporter as to how corrupt politics in New York are, as if we need to be reminded.  The most interesting tidbit is that the statue of limitations on prosecuting the case is five years, which would give the investigators until early 2015.  I can think of at least one person who is counting the days.


Teresa said...

Maybe it's just coincidence, but Rudy Rodriguez has a brother named Gustavo--the horses ran in his name when Rudy was recently suspended for the first overages. Could it be the same guy?

Teresa said...

Sorry for the double-post--but was it 2007 that Velazquez was involved in a whole bunch of gate incidents? There was one summer a few years ago--and I think it must have been 2007 or 2008--that he ended up on the ground a lot at the beginning of races. It was widely talked about, and I think it led to a review of the gate crew and perhaps some changes in personnel. If this is the same summer, I'd imagine that he'd have had some pretty strong words for the crew.

Teresa said...

OK, last one! Yes, that was 2007. Both DRF and the Blood-Horse reported on it.

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Steve Zorn said...

Thanks for following up, Alan. I based by report on a very quick Westlaw search before going to teach; shows one needs to do real research.

After that really bad Saratoga summer, NYRA did make changes, replacing the starter with his assistant. Things have been better since then, though not, IMO, as good as when horse whisperer Bobby Duncan was the starter.

alan said...

FWIW, I believe that Velazquez' testimony was taken well after the incident and those bad Saratoga summers, likely after the first motion to dismiss was denied.

Anonymous said...

I remember when Bailey fell off of Yankee Gentlemen in the horse's second start. It was at Belmont. The horse had debuted with a huge 10+ length win in his maiden race on Florida Derby day at GP. He was 1-9 in this allowance race and the bridge jumpers were out. I had $20 to show on one of the other horses and it paid $33.80 per $2. That was awesome! -JP from SD

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