| Matter of Capital Dist. Regional Off-Track Betting Corp. v New YorkState Racing & Wagering Bd. |
| 2012 NY Slip Op 05766 [97 AD3d 1044] |
| July 26, 2012 |
| Appellate Division, Third Department |
| In the Matter of Capital District Regional Off-Track BettingCorporation et al., Appellants, v New York State Racing and Wagering Board,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Victor Paladino of counsel), for New YorkState Racing and Wagering Board, respondent.
Spain, J. Appeal from an order and judgment of the Supreme Court (Tomlinson, J.), enteredApril 14, 2011 in Schenectady County, which dismissed petitioners' application, in a combinedproceeding pursuant to CPLR article 78 and action for declaratory judgment, to, among otherthings, review a policy of respondent New York State Racing and Wagering Board with regard tothe granting of certain secondary pari-mutuel operator approvals.
Respondent New York State Racing and Wagering Board (hereinafter Board) has generaljurisdiction over all horse racing and pari-mutuel betting activities in New York, includingoff-track betting (see Racing, Pari-Mutuel Wagering and Breeding Law § 101 [1]).As part of that authority, the Board oversees the simulcast of races conducted at New York race[*2]tracks (see Racing, Pari-Mutuel Wagering andBreeding Law §§ 1002 [1]; 1007-1009).[FN*]Among the entities that contract with New York tracks to simulcast races, and thus participate inthe pool of pari-mutuel wagering on those races, are secondary pari-mutuel operators (hereinafterSPMOs), entities that do not conduct racing themselves (see Racing, Pari-MutuelWagering and Breeding Law § 905). Before 2008, as a condition of granting approval forout-of-state SPMOs to enter into simulcast agreements with New York tracks, the Boardgenerally required that those SPMOs agree to refrain from accepting wagers from New Yorkresidents on races run at New York tracks (hereinafter the NY resident restriction). In January2008, the Board reversed that policy and began to approve simulcast agreements between NewYork tracks and out-of-state SPMOs that did not include the NY resident restriction.
Petitioners, five of the six New York State regional off-track betting corporations,commenced this combined CPLR article 78 proceeding and declaratory judgment action inFebruary 2010 to, as relevant to this appeal, challenge the Board's change in policy with regard tothe out-of-state SPMOs as unconstitutional and illegal. The Board answered and asserted, amongother things, that petitioners' challenge to the policy change was untimely. Supreme Court,assuming that petitioners' claims were not barred by the statute of limitations, dismissed thepetition on the merits. Petitioners appeal and we affirm, albeit on different grounds.
In determining the limitations period to be applied in a declaratory judgment action, a courtmust look to the underlying claim and the nature of the relief sought and determine whether suchclaim could have been properly made in another form (see Kreamer v Town of Oxford, 91 AD3d 1157, 1158-1159 [2012];Matter of Save the Pine Bush v Town Bd. of Town of Guilderland, 272 AD2d 689, 691[2000]; Matter of Frontier Ins. Co. v Town Bd. of Town of Thompson, 252 AD2d 928,929 [1998]). Petitioners seek to challenge the Board's change in policy as it relates to out-of-stateSPMOs as unconstitutional and contrary to state law. Where, as here, the challenge brought is toa quasi-legislative act or decision made by an administrative agency, it is well settled that theproper vehicle for such review is a CPLR article 78 proceeding and the four-month statute oflimitations applies (see CPLR 7803 [2]; Walton v New York State Dept. of Correctional Servs., 8 NY3d186, 194 [2007]; Matter of Town ofOlive v City of New York, 63 AD3d 1416, 1418 [2009]; New York Coalition for Quality AssistedLiving, Inc. v Novello, 53 AD3d 914, 916 [2008], lv denied 11 NY3d 715[2009]).
The question then arises as to when the limitations period began. A petitioner seeking CPLRarticle 78 review of a determination must do so "within four months after the determination to bereviewed becomes final and binding upon the petitioner" (CPLR 217 [1]; accord Walton vNew York State Dept. of Correctional Servs., 8 NY3d at 194). When making thedetermination as to whether an agency determination is final, courts must consider thecompleteness of the administrative action and make a pragmatic evaluation as to whether aposition has been reached that inflicts an actual, concrete injury (see Walton v New YorkState Dept. of Correctional Servs., 8 NY3d at 194; Matter of Essex County v Zagata,91 NY2d 447, 453 [1998]; Matter ofAdams v Carrion, 85 AD3d 1517, 1518 [2011], lv denied 17 NY3d 717 [2011]).Consideration must also be accorded to whether further resort to administrative [*3]remedies by the complaining party might serve to ameliorate theinjury (see Matter of Adams v Carrion, 85 AD3d at 1518).
Here, the Board's change in policy occurred in January 2008 and the record demonstrates thatpetitioners participated in a conference call with the Board's counsel at the end of that monthduring which they were informed of the change and that agreements with out-of-state SPMOshad been approved without the NY resident restriction. As the gravamen of petitioners' claim isthat the policy change put them at a competitive disadvantage, it is clear that an actual andconcrete injury occurred, if at all, in January 2008. Additionally, further administrative action asof that time would have been unavailing in light of the fact that certain agreements had alreadybeen approved pursuant to the revised policy (see Matter of Essex County v Zagata, 91NY2d at 452; Matter of Town of Olive v City of New York, 63 AD3d at 1418; Matterof Fishman v Mills, 294 AD2d 764, 765-766 [2002]). This proceeding commenced inFebruary 2010 was therefore untimely, as it was initiated well after the four-month statute oflimitations had expired.
Peters, P.J., Malone Jr., Kavanagh and Garry, JJ., concur. Ordered that the order andjudgment is affirmed, without costs.
Footnote *: A simulcast is "the telecast oflive audio and visual signals of . . . horse races conducted in the state for purposesof pari-mutuel wagering" (Racing, Pari-Mutuel Wagering and Breeding Law § 1001 [a]).