Postrace Presence of Prohibited Meloxicam Alone Establishes a Prima Facie NSAID-Rule Violation Under 9 NYCRR 4043.2 (d)

I. Introduction

Matter of Pletcher v. New York State Gaming Commission (2026 NY Slip Op 02907 [249 AD3d 1290] [3d Dept May 7, 2026]) is an Article 78 review of a New York State Gaming Commission determination suspending thoroughbred trainer Todd A. Pletcher’s license for 10 days and imposing a $1,000 fine after a postrace drug test detected Meloxicam in a winning horse, Forte.

The case’s central issue was regulatory: how to read the “NSAID rule,” 9 NYCRR 4043.2 (d) (which lists three permitted NSAIDs), together with 9 NYCRR 4043.2 (h) (a one-week “no other drugs” restriction). Specifically, the court addressed whether the Commission may rationally treat a postrace positive for Meloxicam—an NSAID not on the permitted list—as sufficient proof of a violation of 9 NYCRR 4043.2 (d) without direct evidence of administration within the seven-day window referenced in 9 NYCRR 4043.2 (h).

A secondary set of issues concerned hearing fairness: whether allowing an intervenor (connected to the second-place finisher) and the intervenor’s out-of-state counsel (allegedly lacking pro hac vice status) denied petitioner due process.

II. Summary of the Opinion

The Third Department confirmed the Commission’s determination and dismissed the petition. The court held:

  • The Commission’s interpretation of 9 NYCRR 4043.2 (d)—that a postrace positive test for Meloxicam itself establishes a violation, without requiring direct proof of administration within seven days—is rational and entitled to deference.
  • The determination was supported by substantial evidence, particularly given stipulated split-sample confirmation by the Texas A&M Veterinary Medical Diagnostic Laboratory.
  • Under the trainer responsibility rule, 9 NYCRR 4043.4, a rebuttable presumption applied and petitioner did not rebut responsibility with substantial evidence; alternative contamination theories were treated as speculative.
  • Due process challenges relating to intervention and out-of-state counsel were rejected; the pro hac vice claim was unpreserved, and the intervention decision was within the agency’s discretion.

The court characterized the case as one of first impression regarding agency enforcement of the specific NSAID rule in 9 NYCRR 4043.2 (d) on essentially these facts.

III. Analysis

A. Precedents Cited

1. Deference to an Agency’s Interpretation of Its Own Regulations

The court anchored its deference framework in Matter of 427 W. 51st St. Owners Corp. v Division of Hous. & Community Renewal, 3 NY3d 337 (2004), quoting the rule that an agency’s interpretation of its own regulation is entitled to deference if not “irrational or unreasonable.” It also relied on its own more recent articulation in Matter of Noda v New York State Gaming Commn., 233 AD3d 1123 (3d Dept 2024), applying the same deferential approach.

These cases supplied the lens for the primary question: not whether a different reading might be plausible, but whether the Commission’s reading of 9 NYCRR 4043.2 (d) was rational in context.

2. The Regulatory Purpose of Drug Rules in Racing

The court cited Matter of Casse v New York State Racing & Wagering Bd., 70 NY2d 589 (1987), to describe the broader purposes of racing medication regulation: horse safety, competitive parity, and fairness to the wagering public, with a “drug-free horse” at race time as an organizing aim.

Casse was also used for the structure of enforcement: once prohibited substances are detected, the trainer responsibility regime can shift the burden to the trainer to show accidental contamination or other exculpatory circumstances.

3. Inconsistency/Arbitrariness and “Prior Determinations”

Petitioner argued arbitrariness based on claimed inconsistency with earlier decisions requiring proof that a drug was administered within a restricted timeframe. The court responded using Matter of Charles A. Field Delivery Serv. [Roberts], 66 NY2d 516 (1985), which addresses when an agency acts arbitrarily by reaching a contrary conclusion on essentially the same facts as a prior determination.

The court held the cited prior cases were inapposite because they did not concern enforcement of 9 NYCRR 4043.2 (d)’s NSAID list structure; rather, they largely involved subdivision (h) (or predecessors) requiring proof of administration within the week.

4. Prior Medication Cases Under 9 NYCRR 4043.2 (h) or Time-Limited Permissions

The court distinguished multiple racing cases cited by petitioner:

  • Cases under the “catch-all” one-week administration prohibition (or predecessors): Matter of Laterza v New York State Racing & Wagering Bd., 68 AD3d 1509 (3d Dept 2009); Matter of Pletcher v New York State Racing & Wagering Bd., 35 AD3d 920 (3d Dept 2006), lv denied 9 NY3d 802 (2007); Matter of Dutrow v New York State Racing & Wagering Bd., 18 AD3d 947 (3d Dept 2005); Matter of Freed v New York State Racing & Wagering Bd., 9 AD3d 808 (3d Dept 2004); Matter of Zito v New York State Racing & Wagering Bd., 300 AD2d 805 (3d Dept 2002), lv denied 100 NY2d 502 (2003); and Casse itself.
  • Cases involving substances permitted within the week but only inside a defined time window, requiring proof of timing: Matter of Mosher v New York State Racing & Wagering Bd., 74 NY2d 688 (1989); Matter of Fusco v New York State Racing & Wagering Bd., 88 AD3d 1240 (3d Dept 2011), lv denied 18 NY3d 809 (2012).

These distinctions mattered because the court read 9 NYCRR 4043.2 (d) as operating differently: it permits only three specifically listed NSAIDs (with a 48-hour cutoff) and excludes others, rather than creating a timing rule that always turns on proving the moment of administration.

5. Substantial Evidence Review

For the evidentiary standard, the court again cited Matter of Noda v New York State Gaming Commn. and also Matter of Rice v New York State Gaming Commn., 217 AD3d 1098 (3d Dept 2023), emphasizing that “substantial evidence” is a minimal standard: relevant proof that a reasonable mind may accept as adequate.

On the racing-drug proof point, the court cited Matter of Dutrow v New York State Racing & Wagering Bd., 97 AD3d 1034 (3d Dept 2012) and Matter of Fusco v New York State Racing & Wagering Bd. for the proposition that confirmed positive test results can constitute substantial evidence of a violation in this context.

6. Rebutting the Trainer Responsibility Presumption

The court invoked Casse and the earlier Matter of Pletcher v New York State Racing & Wagering Bd. for the rebuttable presumption under 9 NYCRR 4043.4, and held that petitioner’s alternative explanations did not rise above speculation. It cited Matter of Guarino v New York State Racing & Wagering Bd., 45 AD3d 1096 (3d Dept 2007), lv denied 10 NY3d 730 (2008), and Matter of Zito v New York State Racing & Wagering Bd. for the principle that speculative explanations do not rebut the presumption.

7. Intervention and Due Process in Administrative Hearings

On intervention, the court relied on Matter of Cortland Glass Co. v Angello, 300 AD2d 891 (3d Dept 2002), quoting Matter of Village of Pleasantville v Lisa's Cocktail Lounge, 33 NY2d 618 (1973), for the proposition that allowing or denying intervention is generally within the agency’s discretion.

On preservation (failure to object at the hearing), the court cited Matter of Daniels v Venettozzi, 219 AD3d 1000 (3d Dept 2023), and Matter of DeBonis v Corbisiero, 169 AD2d 390 (1st Dept 1991), lv denied 78 NY2d 852 (1991), in concluding that the pro hac vice complaint was unpreserved.

8. Footnote Preservation Rulings and Related Prior Pletcher Litigation

Two additional preservation holdings were significant:

  • A State Administrative Procedure Act challenge to the NSAID rule was unpreserved, with citations to Meadow E. Assoc. LP v Village of Potsdam, 211 AD3d 1373 (3d Dept 2022), and Matter of Martinez v State Univ. of N.Y., 294 AD2d 650 (3d Dept 2002).
  • A challenge to testing methodology/equipment reliability was unpreserved, citing the earlier related decision Matter of Pletcher v New York State Gaming Commission, 247 AD3d 1342 (3d Dept 2026), and comparing Matter of Brown v Venettozzi, 164 AD3d 1583 (3d Dept 2018), lv denied 33 NY3d 905 (2019).

The reference to Matter of Pletcher v New York State Gaming Commission (247 AD3d 1342) also helped distinguish this case’s evidentiary posture: here, the violation was tied to “presence” rather than a quantitative threshold.

B. Legal Reasoning

1. The Court’s Core Construction: 9 NYCRR 4043.2 (d) as an Exclusionary List

The opinion treats 9 NYCRR 4043.2 as beginning with an overarching exclusionary premise—drugs are permitted only in accordance with the section’s provisions—and characterizes subdivision (d) as similarly exclusionary. Subdivision (d) lists three NSAIDs that may be administered up to 48 hours before post time; Meloxicam is not listed.

The court’s interpretive move is to treat the omission of Meloxicam from the permitted list not as a gap requiring timing proof under subdivision (h), but as a categorical exclusion in the relevant pre-race period: if an NSAID not on the list appears in postrace testing, that is adequate evidence that the horse raced with a prohibited NSAID in its system—contrary to the reform-minded “drug-free at race time” objective.

2. Harmonizing Subdivision (d) with Subdivision (h) (and Rejecting “Meaninglessness” Arguments)

Petitioner argued that requiring no proof of administration within seven days renders subdivision (h) meaningless. The court rejected that, emphasizing that:

  • Subdivision (h) does not affirmatively authorize all substances outside the one-week window; it is a prohibition, not a blanket permission elsewhere.
  • The court did not hold that timing proof is never required; rather, under these regulations and facts, a postrace positive can rationally establish a prima facie violation of subdivision (d).

3. Policy-and-Enforcement Rationality: Why the “Presence Alone” Approach Was Deemed Rational

The court relied heavily on record testimony from the Commission’s equine medical director, who explained the medication-reform trend, the performance- and pain-masking potential of NSAIDs, and the enforcement challenge for drugs that lack “appropriate lab threshold[s].”

That testimony supported a practical enforcement rationale:

  • For certain substances (like Meloxicam), postrace testing may not reliably identify when administration occurred, making a timing-based proof regime nearly impossible to enforce.
  • By contrast, the three permitted NSAIDs (as framed in the record) would not appear postrace if administered at least 48 hours prior—making the rule enforceable and aligned with the goal of drug-free race-day samples.

In short, the court accepted that a regulation designed to produce clean postrace samples can rationally treat “presence” as the violation trigger for an unlisted NSAID, rather than forcing the agency to prove an administratively and scientifically elusive timing fact.

4. Evidentiary Mechanics: Prima Facie Proof and Burden-Shifting Under 9 NYCRR 4043.4

A key doctrinal consequence of the court’s interpretation is procedural: a postrace positive for Meloxicam establishes a prima facie violation of 9 NYCRR 4043.2 (d), which then activates the trainer responsibility framework under 9 NYCRR 4043.4.

The court emphasized that this structure still affords a trainer an opportunity to rebut responsibility—e.g., by proving accidental contamination—using substantial evidence. But the rebuttal must be more than conjecture. Here, the contamination theories (including contact with an owner taking Meloxicam) were not accepted as substantial evidence rebutting responsibility, particularly given testimony that it would be “highly unlikely, if not scientifically impossible” for mere touching to produce a positive result.

5. Substantial Evidence: Why the Record Was Enough

The court placed decisive weight on the stipulated split-sample confirmation from Texas A&M detecting Meloxicam in both blood and urine. Because the parties stipulated to those results, the court held it need not address challenges to other documents (including the New York lab director’s report) for purposes of the substantial evidence analysis. The “minimal” substantial evidence standard was therefore met.

6. Due Process, Intervention, and the “Co-Prosecutor” Claim

The court rejected due process challenges on two grounds:

  • Preservation: the pro hac vice issue was unpreserved because petitioner did not object on that specific ground at the hearing.
  • Merits: intervention decisions are discretionary; petitioner had notice and an opportunity to object; and the record did not show that the intervenor functioned as a “co-prosecutor.” Notably, the intervenor argued for disqualification of the horse but also suggested petitioner should not be disciplined in light of mitigating evidence—undercutting the claimed prosecutorial role.

C. Impact

1. A Clear Enforcement Rule for Unlisted NSAIDs

The most important doctrinal development is that, for purposes of 9 NYCRR 4043.2 (d), the Commission may treat a postrace positive for an unlisted NSAID (Meloxicam) as sufficient to establish a violation without proving administration within the one-week period in 9 NYCRR 4043.2 (h). This lowers the agency’s proof burden on timing and centers enforcement on the presence of prohibited substances at or after racing.

2. Strengthening the Trainer Responsibility Framework

By framing the positive test as a prima facie violation and explicitly tying the outcome to the burden-shifting in 9 NYCRR 4043.4, the decision reinforces the practical significance of trainer responsibility in New York racing: once the prohibited substance is shown, rebuttal requires substantial proof, not merely plausible alternative scenarios.

3. Litigation Consequences: Preservation and Targeted Objections

The decision also underscores that sophisticated regulatory challenges (e.g., State Administrative Procedure Act arguments, testing methodology attacks, attorney-appearance objections) must be raised and developed in the administrative record. Failure to do so can be dispositive.

4. Potential Limits

The court carefully avoided a universal rule that timing proof is never required. Future disputes may turn on:

  • Whether a rule is structured as an exclusionary list (like subdivision (d)) or as a timing-based prohibition/permission regime.
  • Whether the violation is “presence-based” versus threshold-based (as contrasted with the prior Matter of Pletcher v New York State Gaming Commission [247 AD3d 1342]).
  • The strength of a trainer’s contamination proof and whether it rises above speculation.

IV. Complex Concepts Simplified

  • Article 78 proceeding: A special New York procedure to challenge government/agency actions. When an agency held a required hearing, courts often review whether the decision is supported by “substantial evidence.”
  • Substantial evidence: A low evidentiary threshold—enough relevant proof that a reasonable person could accept it as supporting the conclusion, even if other conclusions are possible.
  • Agency deference: Courts generally defer to an agency’s interpretation of its own regulations unless the interpretation is irrational or unreasonable.
  • Exclusionary regulation: A rule framed as “only these are allowed”; anything not listed is forbidden. The court treated 9 NYCRR 4043.2 (d) that way for NSAIDs.
  • Prima facie showing: Enough proof to establish a violation unless the other side produces evidence to rebut it.
  • Rebuttable presumption (trainer responsibility): A legal rule that presumes the trainer is responsible once a prohibited substance is detected, unless the trainer disproves responsibility with substantial evidence (e.g., genuine contamination proof).
  • Unpreserved argument: A claim a party cannot raise on appeal because it was not properly raised before the hearing officer/agency.
  • Pro hac vice: Permission for an out-of-state attorney to appear in a particular case in a jurisdiction where they are not licensed.
  • Intervention: Allowing a nonparty with an interest to participate in a proceeding. In administrative hearings, this is often within the agency’s discretion.

V. Conclusion

Matter of Pletcher v. New York State Gaming Commission establishes an important, enforcement-oriented interpretation of New York’s thoroughbred medication rules: under 9 NYCRR 4043.2 (d), a postrace positive for Meloxicam—an NSAID not among the three permitted—may rationally be treated as a violation without direct proof of administration within the one-week window described in 9 NYCRR 4043.2 (h). The decision confirms that this presence-based approach is consistent with medication-reform policy goals and with workable evidentiary standards, and it channels disputes into the trainer responsibility framework of 9 NYCRR 4043.4, where rebuttal requires more than speculative contamination theories.

Beyond racing, the opinion is a reminder of two broader administrative-law themes: (1) courts will generally uphold rational agency interpretations of their own rules, especially within technical regulatory schemes; and (2) parties must build and preserve objections in the administrative record if they want meaningful judicial review.