Arone v. Sullivan County Harness Racing Ass'n

OPINION OF THE COURT

Yesawich, Jr., J.

These three appeals bring up for review a common legal issue. Plaintiffs are harness racing trainers, drivers, and owners licensed by the New York State Racing and Wagering Board. Defendant, Sullivan County Harness Racing *138Association, Inc., the private for-profit corporate owner of the Monticello Raceway, summarily barred plaintiffs from working and racing at its facility. Two of the plaintiffs were allegedly excluded in retaliation for labor activities at, or litigation with, the raceway; the third was barred because his presence was deemed to be detrimental to the best interests of racing.

Their requests for preliminary injunctions enjoining defendant from denying them the right to train or race horses at defendant’s racetrack were granted on the premise that defendant’s conduct constituted “State action” which could not be undertaken without affording plaintiffs the procedural safeguards guaranteed by the Fourteenth Amendment. Support for this proposition was mistakenly found in Jacobson v New York Racing Assn. (33 NY2d 144). Since we believe that neither the principle enunciated in Jacobson nor the State action rationale applies, we reverse.

Jacobson declared that the New York Racing Association (NYRA) lacked the capacity to arbitrarily deny a licensed owner and trainer stall space at its racetrack and sanctioned a limited right of action aimed at preventing such uncontrolled activity by the NYRA. That cause of action sprung from the “virtual monopoly” which the NYRA possesses over thoroughbred racing.

Because defendant’s characteristics are markedly different from the NYRA, a suit based upon Jacobson’s reasoning is unavailable. It is of heightened significance that defendant does not monopolize harness racing in the State. Monticello Raceway is but one of seven privately operated harness tracks in New York, and it is not claimed that plaintiffs have been denied the opportunity to ply their trade at the other tracks. Moreover, defendant is a private for-profit corporation owned by over 2,000 shareholders which operates on a one-year renewable license, and upon its dissolution its assets pass to the shareholders. By contrast, the NYRA is a nonprofit association with a 25-year franchise to conduct virtually all the thoroughbred racing in the State, and on its dissolution its assets are to be transferred to exempt organizations designated by the Governor. In our view, the requisite showing of “economic necessity” or “monopoly power” necessary to fuel a Jacob*139son-type action has not been made; hence, defendant had available to it the long-recognized prerogative of racetrack operators to exclude anyone from its track, without cause, provided the exclusion is not based on race, creed, color or national origin (People v Licata, 28 NY2d 113; Madden v Queens County Jockey Club, 296 NY 249). By issuing regulations reiterating the proprietor’s power to serve whom it pleases, the State Racing and Wagering Board has emphasized that the ability of private racetracks to bar unwanted persons continues intact despite extensive State control of harness racing (see 9 NYCRR 4119.8).

Equally unconvincing is the contention that exclusion of plaintiffs from the Monticello track infringes upon the State’s power to license horsemen. As noted, evidence of pervasive exclusion from all New York harness tracks is lacking here; plaintiffs are at liberty to utilize their licenses to race at the other harness tracks.

An even more formidable argument exists for repudiating plaintiffs’ “State action” claim. “State action” cannot be imputed to the endeavors of private individuals or corporations unless the State is responsible for the specific conduct which forms the basis of the complaint (Blum v Yaretsky, _ US _, _, 102 S Ct 2777, 2786 [June 25, 1982]). Here, there is simply no evidence that the decision to prohibit plaintiffs’ access to the raceway’s facilities was the product of either overt or covert significant encouragement by the State.

Harness racing concededly is the subject of far-reaching State supervision. The very nature of the industry lends itself to broader oversight than that required of most private corporate enterprises. There is, however, nothing inherent in horse racing which makes running a racetrack the performance of a public function (see Madden v Queens County Jockey Club, supra, p 254) or the exclusive preserve of the State (Jackson v Metropolitan Edison Co., 419 US 345, 353). The State statutes and regulations to which defendant is subject (see, e.g., L 1980, ch 887, § 2, as amdg L 1940, ch 254, § 45, subd 1, par [b], cl [iv]) consist of no more than “mere regulation” which in itself is insufficient to sustain a finding of State action (see Jackson v Metropol*140itan Edison Co., supra, p 350; Fulton v Hecht, 545 F2d 540, 542).

The orders should be reversed, on the law and the facts, without costs, and the motions for preliminary injunctions denied.