Galvin v. New York Racing Ass'n

• Decision Date: 28 September 1998
• Docket Number: No. 98-CV-4087(ARR).,98-CV-4087(ARR).
• Parties: Dr. Michael GALVIN, Plaintiff, v. NEW YORK RACING ASSOCIATION, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

70 F.Supp.2d 163

Dr. Michael GALVIN, Plaintiff, v. NEW YORK RACING ASSOCIATION, et al., Defendants.

No. 98-CV-4087(ARR).

United States District Court, E.D. New York.

September 28, 1998.

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Kim P. Bonstrom, Karen A. Murphy, Bonstrom & Murphy, Paul A. Batista, New York City, for Plaintiff.

Jonathan R. Donnellan, Cahill, Gordon & Reindel, New York City, Martin L. Lieberman, John L. Russo, Jamaica, NY, Thomas F. Curnin, Cahill Gordon & Reindel, New York City, Catherine Smith, Cahill

Gordon & Reindel, New York City, for Defendants.

OPINION AND ORDER

ROSS, District Judge.

BACKGROUND

On March 27, 1998, plaintiff, Dr. Michael Galvin ("Dr.Galvin"), a professional equine veterinarian specializing in thoroughbred racehorses, was present in Barn 38 at the Belmont Park racetrack, treating horses that were under the supervision of trainer Mitch Friedman ("Friedman"). At that time, George Cary, an investigator for the New York State Racing and Wagering Board, reportedly observed Dr. Galvin `tubing'<sup>1</sup> a horse Cary identified as `Hip Wolf', presumably for the purpose of improperly administering performance-enhancing drugs. Following an investigation, in April, 1998, the three track officials who supervise Belmont Park, known as the Stewards, suspended Dr. Galvin's license for sixty days, the maximum penalty they could impose. That suspension was stayed, however, pending referral of the matter for review by the Racing and Wagering Board.

Defendant New York Racing Association ("NYRA") is a non-profit body organized for the purpose of supervising the three principal racetracks in the state of New York, Belmont Park, Saratoga Springs, and Aqueduct. By letter dated May 6, 1998, NYRA officials informed Dr. Galvin that the NYRA was instituting its own proceedings against him, concerning not only the incident involving `Hip Wolf' but also previous acts of alleged misconduct.

After a four day hearing that spanned the period from May 9 to May 19, 1998, the NYRA suspended, until the end of 1998, Dr. Galvin's NYRA "credentials", a determination that had the effect of immediately terminating Dr. Galvin's access to all racetracks controlled by the NYRA. Thereafter, on June 8, 1998, Dr. Galvin commenced this proceeding pursuant to 42 U.S.C § 1983. He alleged, in part, that the NYRA and the individual defendants, all of them NYRA officials, had violated his due process rights in the hearing that resulted in the suspension of his NYRA credentials. Upon filing his complaint, he sought preliminary injunctive relief pending the conclusion of the lawsuit, as well as a temporary restraining order. This court denied the application for a temporary restraint, finding the record as of that time insufficient to demonstrate that Dr. Galvin would be irreparably harmed absent relief pending the determination of his motion for a preliminary injunction. The court then referred the preliminary injunction motion to Magistrate Judge Marilyn Dolan Go to conduct an evidentiary hearing and issue a report and recommendation pursuant to 28 U.S.C. § 636(b)(1). After three days of hearings, on August 14, 1998, Judge Go issued her report and recommendation, concluding that the preliminary injunction should issue.

Defendants have submitted extensive objections to virtually all aspects of Judge Go's report. As required by § 636(b)(1), the court now reviews Judge Go's report and recommendation de novo as to all findings of fact and conclusions of law to which timely objection has been made.

DISCUSSION

The legal requirements for the grant of a preliminary injunction are not disputed. A preliminary injunction will issue only upon a demonstration of "irreparable harm, and `either (1) a likelihood of success on the merits of [the] case or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in favor [of the moving party].'" Polymer Technology v. Mimran, 37 F.3d 74, 77-78 (2d Cir.1994), quoting Coca-Cola Co. v. Tropicana Prods., Inc., 690 F.2d 312, 314-15 (2d Cir.1982). Finding both irreparable harm and a likelihood of success on the merits, Judge Go did not address the alternate prong of the test for preliminary injunctive relief involving a balance of the hardships. The court has conducted a de novo review of the entire record. For the reasons that follow and, except insofar as otherwise indicated, for the reasons persuasively expressed by Judge Go in her well-reasoned and thorough report, the court adopts Judge Go's recommendation and orders the entry of a preliminary injunction.

I. Irreparable Harm

In concluding that Dr. Galvin would suffer irreparable harm absent preliminary injunctive relief, Judge Go rejected Dr. Galvin's arguments that the denial of constitutional rights per se constituted irreparable harm, Report and Recommendation, at 190-91, and found, rather, that the damage that the NYRA suspension would inflict upon Dr. Galvin's veterinary practice sufficed to constitute irreparable harm. In so doing, she declined to impose the stringent standard governing preliminary injunctions in the context of the termination of employment, applying, rather, the standard that the Second Circuit has adopted in cases "where a party is threatened with the loss of a business." Id. at 190, quoting Tom Doherty Associates, Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 37 (2d Cir.1995). Judge Go explained the rationale underlying the distinction between irreparable injury in the context of termination of employment and in the context of the termination of a business principally on the ground that "a plaintiff subject to adverse action in employment ... has the ability to recover lost income and reinstatement should he prevail. In contrast, a monetary award will not necessarily enable Dr. Galvin to regain his clients and reestablish his practice at NYRA tracks, the profession he has been developing for the past ten years." Report and Recommendation, 191-92.

The NYRA disputes Judge Go's conclusions. It argues that even under the irreparable injury standard applied in the context of the termination of a business, the injury suffered by Dr. Galvin is speculative, and better characterized as lost customers and profits than as the true termination of a business. Defendants' Mem. Of Law, at 14. In any event, the NYRA contends, Dr. Galvin can compensate for any injury from his lost practice on NYRA racetracks by moving his practice to other tracks and servicing horses off-track. Id. at 17. The NYRA also seeks to distinguish those authorities defining irreparable injury in the context of loss of a business. It urges that Dr. Galvin's flexibility and mobility make his situation analogous to that of an employee who has been removed from his position, rendering applicable the more stringent irreparable injury standard for granting a preliminary injunction. Id. at 18-22. Finally, the NYRA disputes that Dr. Galvin will in fact suffer lasting harm as a result of the seven month NYRA suspension. Id. at 22-25.

The courts of this circuit have generally found that the loss of an individual's opportunity to practice his trade in a particular position, typically, in the employer-employee context, does not present `irreparable harm', see, e.g., Shady v. Tyson, 5 F.Supp.2d 102 (E.D.N.Y.1998), but that the termination of most or all of a business is `irreparable harm'. See, e.g., Roso-Lino Beverage Distributors, Inc. v. The Coca-Cola Bottling Company of New York, Inc., 749 F.2d 124 (2d Cir.1984). The initial question posed is thus whether the suspension of Dr. Galvin's credentials, and consequently his inability to practice at NYRA-operated tracks, is better characterized as the loss of an employment opportunity, as defendants argue, or as the termination of a business, as Judge Go concluded.

It is undisputed that Dr. Galvin is not an employee of NYRA, nor is the NYRA a `supplier' of a `product' to Dr. Galvin. Rather, by giving credentials to Dr. Galvin, the NYRA acts as a regulatory body, providing him with an opportunity to ply his trade. No business relationship as such exists between Dr. Galvin and the NYRA.

As noted, the NYRA contends that Dr. Galvin's practice is not analogous to that of the businesses to which the more lenient standard of irreparable injury has been applied. The NYRA asserts that because Dr. Galvin's operation is not "stationary" but rather operates "from his vehicle", he is "capable of conducting his veterinary practice anywhere." Defendants' Mem. Of Law, at 16-17. The distinction the NYRA would draw is without legal import. The irreparable harm inquiry as applied by this circuit addresses the actual injury to the movant's business — a factor affected minimally, if at all, by the mobility of that business.

The NYRA's argument that Dr. Galvin's suspension is more akin to the loss of employment is similarly specious. Defendants' Mem. Of Law, 18. As Judge Go found, Report and Recommendation, 190-91, the key distinction between the termination of an employment relation and the termination of a fundamental business relationship is the effectiveness of a permanent injunction in returning the respective plaintiffs to the status quo ante. An unlawfully discharged employee can be reinstated and given money damages to remedy the loss of wages during the period of unemployment. A business that has been disrupted by the illegal termination of a critical contract, however, cannot so easily be returned to its previous status. The great difficulty in calculating exactly what has been lost, in terms of the value of the business as a going concern and the good-will it has developed, makes equitable relief appropriate.

For this reason, the loss of Dr. Galvin's livelihood is appropriately judged by the business termination standard, and the irreparable harm requirement will be satisfied, if, in fact, his...