Morrello v. Saratoga Harness Racing Inc.
| Decision Date | 04 December 1975 |
| Citation | 375 N.Y.S.2d 670,50 A.D.2d 950 |
| Parties | Anthony MORRELLO, Appellant, v. SARATOGA HARNESS RACING INC., et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Richard A. Insogna, Amsterdam, for appellant.
David W. Morris, Latham, for respondents.
Before HERLIHY, P.J., and GREENBLOTT, KOREMAN, MAIN and REYNOLDS, JJ.
Appeal from an order and judgment of the Supreme Court in favor of defendant, entered March 10, 1975 in Montgomery County, upon a dismissal of the complaint by the court at a Trial Term at the close of the evidence.
The plaintiff, a licensed owner of trotting and pacing horses and a licensed driver, raced his horses at defendant's track at the 1970 racing season. He kept his horses in stalls on defendant's race track facility, furnished without charge during the racing season. The stalls used by plaintiff were assigned by defendant to one Joseph Belmonte by an agreement in writing which provided, in part, as follows:
The association has the exclusive and inherent right, in the exercise of its own discretion, to revoke * * * at any time this limited and conditional occupancy * * * and (the undersigned) agrees to and shall remove * * * his horses, and to vacate such stall spaces within a maximum of 48 hours of any such notice for their removal.
The plaintiff testified that at the close of the 1970 racing season he left his two horses in care of Joseph Belmonte in the stalls he used during the season. Defendant made a charge of fifty cents per day for the use of stalls starting 30 days after the close of the racing season. Plaintiff testified he paid the fifty cents a day charge to Belmonte and Belmonte paid the defendant.
By letter dated March 29, 1971 and received by plaintiff on March 31, 1971, defendant notified plaintiff that his two horses were not being assigned stalls for the 1971 racing season and requested plaintiff to remove his horses from defendant's grounds before noon of April 4, 1971. Plaintiff ignored the request and continued to keep his horses in defendant's stalls and continued to tend and train his horses at defendant's property.
On April 7, 1971, one of defendant's employees delivered a letter to plaintiff from defendant's superintendent of security which stated:
It is my unfortunate duty to inform you that your presence on Saratoga Harness Racing property is not desired.
Upon receipt of this letter you are barred from entrance to Saratoga Harness Racing property until further notice. Violation of this order will constitute a criminal trespass and is subject to arrest in violation of 140.10 (misdemeanor), State of New York Penal Law.
After receiving defendant's letter of April 7, 1971 plaintiff left defendant's property and consulted his attorney. That afternoon, plaintiff returned to defendant's property to tend his horses, and entered without incident. A security guard then learned that defendant had notified plaintiff not to enter defendant's property and ordered plaintiff to leave at once. On his refusal to leave, plaintiff was arrested by defendant's security guard, without a warrant, and was charged with violating section 140.10 of the Penal Law, criminal trespass in the third degree. On plaintiff's criminal trial in the City Court of Saratoga Springs, he was acquitted.
Thereafter, plaintiff commenced this...
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Morrello v. Saratoga Harness Racing, Inc.
...part, uncontradicted facts are amply set forth in the decision of this court when the matter was before us on an earlier appeal (50 A.D.2d 950, 375 N.Y.S.2d 670). On that occasion, we upheld the judgment appealed from insofar as it dismissed the cause of action for malicious prosecution on ......