| Matter of Catskill Regional Off-Track Betting Corp. v New York StateRacing & Wagering Bd. |
| 2008 NY Slip Op 09152 [56 AD3d 1027] |
| November 20, 2008 |
| Appellate Division, Third Department |
| In the Matter of Catskill Regional Off-Track Betting Corporation,Appellant, v New York State Racing and Wagering Board et al.,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Kathleen M. Arnold of counsel), for NewYork State Racing and Wagering Board, respondent. The Towne Law Offices, P.C., Albany (Michael Rhodes-Devey of counsel), for NevadaGold-Tioga Downs, Inc., and another, respondents.
Lahtinen, J. Appeal from a judgment of the Supreme Court (Kramer, J.), entered July 26,2007 in Schenectady County, which, in a proceeding pursuant to CPLR article 78, grantedrespondents' motions to dismiss the petition.
The issue before us is whether petitioner's CPLR article 78 proceeding was commenced in atimely fashion. Respondent Tioga Downs Racetrack, LLC owns a horse track in Tioga Countythat is operated by respondent Nevada Gold-Tioga Downs, Inc. (hereinafter NGTD). NGTDapplied to respondent New York State Racing and Wagering Board (hereinafter Board) for alicense to operate the track with pari-mutuel wagering, and for a license to receive simulcastsfrom other tracks and transmit simulcasts of its races. A temporary track permit was issued inMay 2006 subject to various conditions such as satisfying inspections and complying withpertinent regulations. Subject to similar conditions, the Board approved, on June 5, 2006, a"temporary conditional simulcast license" for NGTD. Harness racing and simulcasting began on[*2]June 9, 2006.
Although Tioga Downs is located in petitioner's region (see Racing, Pari-MutuelWagering and Breeding Law § 519 [1] [d]), petitioner refused to simulcast or acceptwagers on races at Tioga Downs. Petitioner asserted that during the months following theopening of Tioga Downs, four of its branches had decreased revenues ranging 22% to 36%. Thisoccurred not because races were conducted at Tioga Downs that petitioner refused to simulcast,but because NGTD simulcasted races from other tracks at Tioga Downs for its patrons (cuttinginto petitioner's revenues). In a detailed letter in August 2006, the Board requested writtensubmissions from petitioner and NGTD by September 1, 2006 regarding the dispute aboutsimulcasting. By decision dated September 22, 2006, the Board ordered an amendment ofpetitioner's plan of operation requiring it to accept simulcasts from Tioga Downs, with thecondition that NGTD provide its simulcast signal to petitioner at no cost and be paid the statutoryminimum commission by petitioner.
In January 2007, petitioner commenced this proceeding seeking to set aside the Board'sdecision granting a simulcast license to NGTD. Respondents made separate motions to dismissupon the ground that the Board's determination was final and binding in June 2006 and, thus, theproceeding was barred by the four-month statute of limitations of CPLR 217 (1). After hearingarguments on the motion, Supreme Court ruled from the bench and granted respondents' motions.Petitioner appeals.
The four-month time frame commences once an administrative determination "becomes finaland binding upon the petitioner" (CPLR 217 [1]). The two requirements for determining finalityin this context are: "the agency must have arrived at a definite position on the issue inflictingactual injury, and the injury may not be significantly ameliorated either by further administrativeaction or steps taken by the complaining party" (Matter of Comptroller of City of N.Y. v Mayor of City of N.Y., 7 NY3d256, 262 [2006]; see Walton v NewYork State Dept. of Correctional Servs., 8 NY3d 186, 194 [2007]; Matter of City of New York [GrandLafayette Props. LLC], 6 NY3d 540, 547-548 [2006]). This rule is "easier stated thanapplied" (Matter of Essex County v Zagata, 91 NY2d 447, 453 [1998]; see Walton vNew York State Dept. of Correctional Servs., 8 NY3d at 197 [Smith, J., concurring][characterizing the statute of limitations issue regarding government action as often "difficult"];Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C217:1, at520 [observing that determining whether an administrative determination is final is "often athorny issue"]).[FN*]The policy underlying the short time frame recognizes that "the operation of governmentagencies should not be unnecessarily clouded by potential litigation" (Matter of Best Payphones, Inc. vDepartment of Info. Tech. & Telecom. of City of N.Y., 5 NY3d 30, 34 [2005]).
An agency cannot, however, claim finality from an ambiguity that it created (see Mundyv Nassau County Civ. Serv. Commn., 44 NY2d 352, 358 [1978]; see also Matter ofCarter v State of N.Y., Exec. Dept., Div. of Parole, 95 NY2d 267, 270 [2000]; Matter ofBiondo v New York State Bd. of Parole, 60 NY2d 832, 834 [1983]). The Court of Appealshas instructed that, "when an administrative body . . . creates ambiguity," a partydesiring to challenge the determination "should not have to risk dismissal . . . bynecessarily guessing when a final and binding [*3]determinationhas or has not been made," but instead " 'the courts should resolve any ambiguity created by thepublic body against it in order to reach a determination on the merits and not deny a party his [orher] day in court' " (Mundy v Nassau County Civ. Serv. Commn., 44 NY2d at 358,quoting Matter of Castaways Motel v Schuyler, 24 NY2d 120, 126-127 [1969];Matter of Carter v State of N.Y., Exec. Dept., Div. of Parole, 95 NY2d at 270). "Havingcreated the ambiguity and impression of nonfinality, it [is] up to the [administrative body] toeither make it clear what was or was not its [final] determination or, failing that showing, toabide by reasonable delays which it alone had engendered" (Mundy v Nassau County Civ.Serv. Commn., 44 NY2d at 358 [internal quotation marks and citations omitted]).
Here, the use of the words "temporary" and "conditional" regarding the simulcast licenseconnote, on their face, a nonfinality regarding the license or, at a minimum, inject ambiguity as tofinality. Simply stated, something that is temporary and conditional is typically not, underordinary usage of the English language, final. And, at oral argument, the parties acknowledgedthat not all the conditions attached to the license had been satisfied. Moreover, it is undisputedthat during the summer of 2006, there were ongoing discussions among the Board, petitioner andNGTD, which arose from the granting of the simulcast license and reflected efforts by petitionerto obtain some amelioration of the impact upon it of the simulcasting allowed NGTD by theBoard. Written submissions were elicited and, while the precise issue ultimately addressed by theBoard in September 2006 was not identical to the relief that petitioner seeks in this proceeding,all the issues were related and intertwined with the decision to permit simulcasting by NGTD. Itdid not become clear that no further amelioration would occur until the Board's decision datedSeptember 22, 2006. Accordingly, the petition filed in January 2007 should not have beendismissed as untimely.
Mercure, J.P., Peters, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgment isreversed, on the law, without costs, motions denied, and matter remitted to the Supreme Court topermit respondents to serve answers within 30 days of the date of this Court's decision.
Footnote *: Indeed, Supreme Courtacknowledged that "this is a tough issue, no question about it."