Appeal from a judgment of the Supreme Court (Kramer, J.), entered June 2, 2009 in Schenectady County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent New York State Racing and Wagering Board granting a simulcast license to respondent Nevada Gold-Tioga Downs, Inc.
The underlying facts are set forth in our prior decision (Matter of Catskill Regional Off-Track Betting Corp. v New York State Racing & Wagering Bd., 56 AD3d 1027 [2008]). Briefly, petitioner contends that respondent New York State Racing and Wagering Board acted arbitrarily and exceeded its authority by the manner in which it licensed simulcasting of horse races at a harness track owned by respondent Tioga Downs Racetrack, LLC and operated by respondent Nevada Gold-Tioga Downs, Inc. (hereinafter NGTD). Supreme Court dismissed the petition. Petitioner appeals.
Petitioner first contends that the Board violated Racing, PariMutuel Wagering and Breeding Law § 1003 by considering NGTD’s application for a simulcast license at a time when NGTD had not yet been licensed to conduct horse racing and wagering. The statute provides that “[a]ny racing association or corporation or regional off-track betting corporation, authorized to conduct pari-mutuel wagering under this chapter, desiring to display the simulcast of horse races on which pari-mutuel betting shall be permitted . . . may apply to the [B]oard for a license so to do” (Racing, Pari-Mutuel Wagering and Breeding Law § 1003 [1] [a]). The developers who eventually formed NGTD initially submitted applications at the same time for both a license for a harness track with pari-mutuel wagering and a license permitting simulcasting of other races. While it would have been inconsistent with the statute for a simulcast license to have been issued prior to the issuing of a track and pari-mutuel wagering license, such order of issuing licenses did
Next, petitioner asserts that the Board had no statutory authority to issue a simulcast license that was temporary and conditional. We are unpersuaded. Racing, Pari-Mutuel Wagering and Breeding Law § 1003 (5) provides that harness racing simulcast licenses “shall be issued in accordance with and subject to the provisions governing licenses for participants and employees in . . . article three of this chapter.” Temporary licenses with conditions set by the Board are authorized in article three (see Racing, Pari-Mutuel Wagering and Breeding Law § 307 [7]).
Petitioner further argues that granting NGTD a simulcast license reduced petitioner’s revenue and, thus, the license should not have been granted. In support of this argument, petitioner urges that Racing, Pari-Mutuel Wagering and Breeding Law § 1000 prohibits the licensing of any simulcasting that negatively impacts the operations of an off-track betting corporation. A paramount legislative intent in authorizing offtrack betting was generating governmental revenue (see Matter of Suffolk Regional Off-Track Betting Corp. v New York State Racing & Wagering Bd., 11 NY3d 559, 565 [2008]). When the Legislature first authorized simulcast wagering on an experimental and temporary basis (see L 1984, ch 363, §§ 14, 15), it expressed its intent to protect revenue generated by regional off-track betting corporations while also seeking to promote growth in the industry resulting in additional revenue (see Racing, Pari-Mutuel Wagering and Breeding Law § 1000). The language upon which petitioner relies is set forth in a section of the statute that repeatedly refers to an experimental phase, which has long since passed (see L 1990, ch 346, § 42). In any event, the overall statutory language reflects a balancing of interests, with an emphasis on raising governmental revenue. The record in this proceeding reveals that, although petitioner saw a decrease in revenue as a result of the Board’s licensing of simulcasting at NGTD, overall in the region simulcast wagering (and concomitantly revenue) increased considerably. The Board’s action was neither violative of a pertinent statutory provision nor arbitrary
Cardona, P.J., Mercure, Spain and Garry, JJ., concur. Ordered that the judgment is affirmed, without costs.