Matter of Frank v Stevens

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Matter of Frank v Stevens 2008 NY Slip Op 05359 [52 AD3d 316] [52 AD3d 316] June 12, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 13, 2008

In the Matter of Raul Frank, Appellant,
Ron Scott Stevens, as Chairman of the New York State Athletic Commission, et al., Respondents.

—[*1] David Berlin, New York, for appellant.

Andrew M. Cuomo, Attorney General, New York (Richard O. Jackson of counsel), for Ron Scott Stevens and New York State Athletic Commission, respondents.

Carlos A. Matir, New York, for Terrance Cauthen, respondent.

Judgment, Supreme Court, New York County (Walter B. Tolub, J.), entered October 25, 2007, dismissing this proceeding seeking to annul the determination of respondent Athletic Commission that overruled a referee's award of a technical knockout to petitioner and changed the result of the boxing match to a "no decision," unanimously affirmed, without costs.

Under the broad, statutory scheme applicable here (see McKinney's Uncons Laws of NY § 8906 [L 1920, ch 912, § 6, as amended]), the Commission retains the power and discretion to reverse a referee's in-fight determination (e.g. 19 NYCRR 211.6, 212.16) where it is deemed to be in boxing's best interest (19 NYCRR 206.3). The Commission's determination was not arbitrary and capricious, an abuse of discretion or contrary to law, so we are obliged to affirm (see Matter of Partnership 92 LP & Bldg. Mgt. Co., Inc. v State of N.Y. Div. of Hous. & Community Renewal, 46 AD3d 425, 428-429 [2007]).

Inasmuch as the applicable rules allow the Commission to alter a referee's in-ring determination, the Commission's review of videotape evidence was an application of already existing rules rather than a promulgation of a new one that might implicate the procedures [*2]outlined in the State Administrative Procedure Act (see e.g. Matter of Alca Indus. v Delaney, 92 NY2d 775 [1999]). Concur—Tom, J.P., Saxe, Friedman, Buckley and Catterson, JJ. [See 2007 NY Slip Op 33348(U).]

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