04/26/2007 12:00AM

Top Flight DQ reversed


In a rare decision, the New York State Racing and Wagering Board has overturned the Aqueduct stewards' decision to disqualify Rahys' Appeal from first place in last November's $150,000 Top Flight Handicap and have restored her as the winner of the Grade 2 race.

Rahys' Appeal, owned by Marlene Brody's Gallagher's Stud, finished first by three lengths in the Top Flight but was disqualified by the stewards because jockey Alan Garcia's whip inadvertently struck the runner-up, Malibu Mint, in the face in midstretch. While it was a widely held belief that a whip to the face is automatic grounds for disqualification, the rule states the act must be deemed willful. Immediately after the race, the stewards indicated the act was not willful, but they felt it affected the outcome of the race.

At its monthly meeting Thursday, the board unanimously reversed the decision, saying there was no legal ground for disqualifying Rahys' Appeal.

"The board agrees there was no dispute that the whip of Rahys' Appeal struck Malibu Mint, but there is no rule that allows for a penalty or disqualification like the one imposed based on the careless use of the whip, only the willful use of the whip," said a board spokesman, Dan Toomey.

Toomey added that the board's chairman, Daniel Hogan, has directed his staff to revisit the whip rule and possibly add "careless use" of the whip as means for disqualification.

"That rocked me back," said Tom Bush, trainer of Rahys' Appeal, said of the decision. "That is the most unbelievable news I ever heard in my life."