30 N.Y.2d 269, Sullivan County Harness Racing Ass'n v. Glasser

Citation:30 N.Y.2d 269, 332 N.Y.S.2d 622
Party Name:Sullivan County Harness Racing Ass'n v. Glasser
Case Date:April 26, 1972
Court:New York Court of Appeals
 
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Page 269

30 N.Y.2d 269

332 N.Y.S.2d 622

In the Matter of SULLIVAN COUNTY HARNESS RACING ASSOCIATION, Inc., Respondent, and New York City Off-Track Betting Corporation, Intervenor-Respondent,

v.

Robert A. GLASSER, as Chairman of the New York State Harness Racing Commission, et al., Appellants, and Saratoga Harness Racing, Inc., et al., Intervenors-Appellants.

New York Court of Appeals

April 26, 1972.

Page 270

[332 N.Y.S.2d 623] Louis J. Lefkowitz, Atty. Gen. (Charles A. La Torella, Jr., Samuel A. Hirshowitz and Irving Galt, New York City, of counsel), for appellants.

Page 271

[332 N.Y.S.2d 624] Ralph L. Halpern, and Frank G. Raichle, Buffalo, for Genesee-Monroe Racing Assn., Inc. and others, intervenors-appellants.

Samuel Gottlieb, Alan C. Krieger, New York City, and George Morton Levy, Westbury, for Roosevelt Raceway, intervenor-appellant.

Page 272

William D. Kiley, Oneida, for Mid-State Raceway, Inc., intervenor-appellant.

Page 273

J. Lee Rankin, Corp. Counsel (R. Harcourt Dodds, James J. Nespole, New York City, and Elliot P. Hoffman, Brooklyn, of counsel), for intervenor-respondent.

John S. McBride, Monticello, for Sullivan County Harness Racing Assn., Inc., respondent.

Page 274

BURKE, Judge.

In this article 78 proceeding, the issue is whether the State Harness Racing Commission (hereafter Commission) had the requisite power to condition petitioner's racing dates with the prohibition that the petitioner not conduct its racing programs in conjunction with television.

The Appellate Division, Third Department, 38 A.D.2d 690, 327 N.Y.S.2d 1015, unanimously affirmed without opinion a judgment of the Supreme Court, Sullivan County, 68 Misc.2d 579, 327 N.Y.S.2d 477, nullifying the Commission's determination which conditioned the special license granted to petitioner with the proviso that there be no televising of its racing events. On January 5, 1972, at the opening of the January session of court, we granted leave to appeal.

The operative facts are as follows. By an amendment to section 38 of the Pari-Mutuel Revenue Law (L.1940, ch. 254, as amd. McK.Unconsol.Laws, § 7951 et seq.) the Legislature altered the period during which harness racing could be conducted in New York (L.1971, ch. 1095). The amendment provided: 'In counties having a population of two hundred fifty thousand or less, the state harness racing commission may, however, permit the holding of one or more harness horse race meetings and the conduct of harness races at such meetings on a day or days not during such period if the commission is satisfied that a special occasion makes the holding of such meetings and the conduct of such races on such day or days proper or necessary; but in no event shall such meetings or races be held or conducted on the twenty-fifth day of December.' The section already provided that 'Such power and right, however, shall not include the right to conduct pari-mutuel betting at such harness horse race meetings except pursuant to license granted by the state harness racing commission pursuant to this act.' Pursuant to this change in permissible racing dates, on August 18, 1971, petitioner Sullivan County Harness Racing Association (hereafter Monticello) applied for

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the following dates: December 15, 1971 [332 N.Y.S.2d 625] through January 8, 1972. On September 8, 1971, the Commission granted the request, finding that the special winter carnival in the community in which Monticello is located was a special occasion which warranted the approval of the application.

Thereafrter, on October 6, 1971, petitioner Monticello and the New York City Off-Track Betting Corporation (hereafter OTB), after protracted negotiations, entered into a contract by which OTB agreed to televise one live race each night from December 15, 1971 to January 8, 1972. The parties further agreed that OTB would have television...

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