M E M O R A N D U M. In this Article 78 proceeding the petitioner, Joanne Halsey,

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1 SUPREME COURT - STATE OF NEW YORK COUNTY OF QUEENS - IAS PART 16 M E M O R A N D U M In the Matter of the application of, BY: KELLY, J JOANNE HALSEY, - against - Petitioner, DATED: March 1, 2005 INDEX NUMBER: 18789/2004 For a Judgment Pursuant to CPLR Article 78 MOTION DATE: December 21, 2004 THE NEW YORK STATE RACING AND WAGERING BOARD and THE NEW YORK RACING ASSOCIATION, INC., Respondents. In this Article 78 proceeding the petitioner, Joanne Halsey, ( Halsey ) seeks, inter alia, to compel the respondent, The New York State Racing and Wagering Board ( Board ) to conduct a hearing and review the determination of the respondent The New York Racing Association, Inc. ( NYRA ) barring Halsey from entering the horse racing tracks owned and operated by NYRA. Halsey also seeks the court to invalidate the determination made by NYRA banning her from its premises as violating her right to due process. The respondent Board cross-moves to dismiss the petition on the basis that it fails to state a cause of action (See, CPLR 3211[a][7]) and pursuant to CPLR 7804[f]. The petitioner is a thoroughbred horse owner who was licenced to race at NYRA tracks from 1995 to apparently the end of NYRA owns and operates three racetracks in New York State Aqueduct, Belmont Park and Saratoga under a franchise granted to it by the Board (See, 1

2 Racing, Pari-Mutuel Wagering and Breeding Law 208). All the parties agree that on or about May 31, 2003, Halsey was confronted at Belmont Park by security personnel of NYRA, including a Peace Officer Thomas Kalodes ( Kalodes ), whereupon she was ejected from the premises and informed that she was banned from all NYRA race tracks. Halsey claims that Kalodes removed her from the premises on the basis of an she allegedly sent to Dr. Celeste Kunz, a veterinarian at Belmont Park, that NYRA personnel asserted threatened Kunz with physical harm. Halsey also declares that the justification for her ban proffered by NYRA was simply a pretense intended to obfuscate their true motive which she asserts was to retaliate against her for claiming she was harassed by NYRA personnel. NYRA maintains that Halsey engaged in a variety of behavior which resulted in the petitioner being ejected and banned from NYRA premises. In his affidavit, Kalodes avers that on May 31, 2003 Halsey was acting disruptively at the starting gate at Belmont Park by yelling at NYRA starting gate personnel, [by] agitating the race horses, [and by] distracting the starters and jockeys. Kalodes also avowed that Halsey had, on previous occasions, entered areas of NYRA racetracks that she was not authorized to access and was warned by Kalodes against trespassing in those areas in the future. Halsey states that the security personnel informed her upon her ejection that she could seek reinstatement after six months. On or about December 2, 2003, Halsey forwarded a letter to Kenneth Cook, Director of Security for NYRA, requesting permission to access NYRA premises. In a letter dated December 12, 2003, Cook informed the 2

3 petitioner that her request for reinstatement was denied. Turning first to Halsey s claim against the Board, which is an application under Article 78 of the Civil Practice Laws and Rules seeking mandamus to compel a hearing and review, the petitioner must demonstrate that a body or officer failed to perform a duty enjoined upon it by law, as well as that the right to relief is clear and involves no exercise of discretion (See, CPLR 7803[1]; Garrison Protective Servs. v Office of Comptroller, 92 NY2d 732, 736; Hamptons Hospital & Medical Center, Inc. v Moore, 52 NY2d 88). In other words, [m]andamus lies to compel the performance of a purely ministerial act (Legal Aid Soc. v Scheinman, 53 NY2d 12, 16). The logic underlying this principle is that CPLR article 78 is not designed to provide a vehicle for the substitution of the court s discretion for that of the administrative agency (Chessin v New York City Conciliation & Appeals Bd., 100 AD2d 297, 302). In the present case, Halsey, at best, establishes that the Board has general jurisdiction over all horse racing activity, all pari-mutuel betting activity, and all persons and entities engaged in those activities (Capital Dist. Regional Off-Track Betting Corp. v NYSRWB, 54 NY2d 154; see also, Racing, Pari-Mutuel Wagering and Breeding Law 201). However, nowhere in her papers does Halsey demonstrate that the Board is expressly compelled by statute or regulation to intervene in her dispute with NYRA by reviewing the decision to expel her from all NYRA premises at an evidentiary hearing. Indeed, it is apparent that whether the Board should reexamine NYRA s action presents a question of " judgment, discretion, allocation of resources and priorities [which 3

4 is] inappropriate for resolution in the judicial arena " (Saumell v. New York Racing Ass n, 58 NY2d 231, 239 n. 1, citing Kerness v Berle, 85 AD2d 695). With respect to the petitioner s claim against NYRA, such claim must fail since it is time barred. Pursuant to CPLR 217[1], the petitioner had four months from the time NYRA s action became final to commence the within special proceeding. The petitioner was initially banned from NYRA s premises on May 31, 2003 and approximately six months later, the petitioner s request for reinstatement was denied by NYRA in a letter dated December 12, Thus, the petitioner should have commenced her action against NYRA within four months of NYRA s denial of her asking reinstatement. Here, it is undisputed that this special proceeding was not commenced until August 18, 2004, over four months late. Halsey s assertion that the statute of limitations did not accrue on her claim against NYRA until the Board denied her request to review NYRA s action is unavailing as NYRA s determination became final on or about December 12, 2003 (See, Mazzilli v New York City Fire Department, 224 AD2d 621). Moreover, since there was no mandatory procedure for appealing NYRA s determination to the Board, the statute of limitations was not tolled while the petitioner attempted to convince the Board to intervene (See, Lubin v Board of Education, 60 NY2d 974; Queensborough Community College of CUNY v State Human Rights Appeal Board, 41 NY2d 926; Bargstedt v Cornell Univ., 304 AD2d 1035). Assuming the court were to consider Halsey s claims against NYRA on the merits it would nonetheless find them futile. Halsey asserts that 4

5 NYRA s decision to prohibit her from entering its racetracks was made in violation of her right to due process and was arbitrary and capricious (CPLR 7803[3]). In numerous cases the Court of Appeals has enunciated the rule that the NYRA may, under common law authority, exclude, without justification, any person from its premises (See, Jacobson v New York Racing Asso., 33 NY2d 144, 149; People v Licata, 28 NY2d 113, 115; Madden v Queens County Jockey Club, Inc., 296 NY 249, 253). This power is limited, however, and the NYRA may not exclude persons based upon race, creed, color or national origin and other constitutionally protected classes (See e.g., Madden v Queens County Jockey Club, Inc., supra). In addition it has been held that NYRA may not arbitrarily exclude persons from its premises in violation of other constitutional rights including the right to free expression (See, Stevens v New York Racing Association, Inc., 665 F.Supp. 164) and due process (See, Jacobson v New York Racing Asso., supra). To implicate the right to due process, the proponent must demonstrate that they have been deprived of some property or liberty interest, rather than a privilege (See, Mathews v Eldridge, 424 US 319, 333; Meyers v City of New York, 208 AD2d 258, ). Here, it is undisputed that at the time of her exclusion to the date of the institution of this proceeding, Halsey was not licensed by NYRA or Board for any purpose or activities at NYRA premises. As such, the rule enunciated in Madden v. Queens County Jockey Club... remain[s] applicable to a person such as the petitioner in this proceeding who is not licensed as an owner or trainer or in any other capacity in 5

6 connection with racing in the State of New York and NYRA was justified in excluding her from their premises notwithstanding the arbitrariness of the decision (Presti v New York Racing Association, 46 AD2d 387, 390). Accordingly, the petitioner s application brought pursuant to section 7803[1] and [3] is denied and the cross-motion by the respondent board to dismiss this special proceeding is granted. Settle judgment. Peter J. Kelly, J.S.C. 6