Sturgis v. Sullivan County Harness Racing Ass'n, Inc.

• Decision Date: 22 December 1983
• Citation: 470 N.Y.S.2d 892,98 A.D.2d 901
• Parties: Harold STURGIS et al., On Behalf of Themselves and All Others Similarly Situated, Appellants, v. SULLIVAN COUNTY HARNESS RACING ASSOCIATION, INC., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 892

470 N.Y.S.2d 892

98 A.D.2d 901

Harold STURGIS et al., On Behalf of Themselves and All Others Similarly Situated, Appellants, v. SULLIVAN COUNTY HARNESS RACING ASSOCIATION, INC., et al., Respondents.

Supreme Court, Appellate Division Third Department.

Dec. 22, 1983.

Lynch, Lynch & Gioeli, Greenwood Lake (Donald John Lambiase, Greenwood Lake, of counsel), for appellants.

Friedlander, Gaines, Cohen, Rosenthal & Rosenberg, New York City (Thomas J. McNamara, New York City, of counsel), for respondents.

Before SWEENEY, J.P., and KANE, CASEY, MIKOLL and WEISS, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Supreme Court at Special Term, entered October 21, 1982 in Sullivan County, which granted defendants' motion to dismiss the complaint.

The central issue on this appeal is whether the three-year Statute of Limitations relating to actions to recover upon a liability, penalty or forfeiture created or imposed by statute (CPLR 214, subd. 2) applies to plaintiffs' first cause of action, which seeks to recover moneys allegedly wrongfully excluded from purses awarded to plaintiffs, horseowners, by defendants, owners and operators of Monticello Raceway. Also at issue is whether plaintiffs' allegation that defendants breached an implied contract by excluding such moneys from their purses states a cause of action. We affirm Special Term's dismissal of these causes of action.

It is not disputed that if the three-year Statute of Limitations for causes of action seeking to recover upon a liability created by statute (CPLR 214, subd. 2) is applicable here, plaintiffs' first cause of action is time barred. Relying upon State of New York v. Cortelle Corp., 38 N.Y.2d 83, 378 N.Y.S.2d 654, 341 N.E.2d 223, plaintiffs contend that the three-year limitation period is not applicable since the cause of action seeks moneys wrongfully retained, an equitable cause of action recognized at common law. We agree with Special Term, however, that without the statute, plaintiffs' first cause of action would fail, for the sole basis of plaintiffs' allegation that defendants have wrongfully retained the moneys sought by plaintiffs is the statutory provision which requires inclusion of those moneys in the calculation of purses (Racing, Pari-Mutuel Wagering and Breeding Law, § 527, subd. 4, par. b). In the absence of this statutory provision, there would be no requirement that defendants include the disputed moneys and, thus, they would not be liable to plaintiffs for those moneys. It follows, therefore, that plaintiffs' cause of action is based...