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March 14, 1994



The opinion of the court was delivered by: GERARD L. GOETTEL

This is plaintiff George Hadges's third attempt to compel the Yonkers Racing Corporation ("YRC") to allow him to drive and train horses in harness races at the Yonkers Raceway ("the Raceway"). He claims YRC's refusal to allow him to utilize his state-issued licenses at Yonkers without sufficient procedural protections violated his due process rights under the Fourteenth Amendment.


 Plaintiff was licensed in 1972 by the New York State Racing and Wagering Board ("the Racing Board") to own, train and drive harness race horses. Although he claims to have had a "spotless record" until 1986 when he was charged with a "technical violation" at Roosevelt Raceway, that is clearly not the case. In 1974, his license was suspended and revoked because he failed to disclose four prior criminal arrests in his original license application. His license was denied the following year and not ultimately restored until 1976.

 The incident at Roosevelt Raceway in 1986 was far from technical. The Racing Board found that the plaintiff had illegally signalled and passed wagering information to a member of the betting public at the rail while he was taking his harness race horse to the starting line. The Racing Board also found that his horse behaved erratically during the race, interfering with the other horses, and that the horse's number he called out did, in fact, win. The plaintiff testified under oath and denied every aspect of the charges in contradiction to the testimony of Roosevelt Raceway security personnel. The finding against him, therefore, implicitly rejected the truthfulness of his testimony.

 The proceedings following the Roosevelt incident were not completed until 1989 when plaintiff was suspended for six months. After his license was restored, he attempted again to obtain privileges at the Yonkers Raceway which refused to accept him. The Raceway is one of six privately owned and operated harness racetracks licensed to conduct harness racing in this state. (A seventh, the Roosevelt Raceway, at which the 1986 infraction occurred, has since closed.) We are told that the Rooney family which owns the Yonkers Raceway has invested $ 65,000,000 in it. It is alleged, and the court so finds, that the Raceway has a vital interest in preserving the integrity of the Raceway and the honesty of the competition in the races.

 The plaintiff's first attempt to compel the Raceway to give him privileges was filed before this court in 1989, Hadges v. Yonkers Racing Corporation, 89 Civ. 8055 (GLG), 733 F. Supp. 686 (1989). As with the instant case, the plaintiff moved for a temporary injunction and the defendant cross-moved to dismiss. This court found that Yonkers Raceway was a private operation and, therefore, the court did not have jurisdiction over plaintiff's civil rights claim under 42 U.S.C. § 1983 because there was an absence of government action. The plaintiff now contends that that action should be reinstated claiming there was a fraud upon the court. He points, in particular, to two footnotes in this court's decision, one of which referred to the Meadowlands Raceway in New Jersey as an alternate track within the New York metropolitan area where the plaintiff could work. That reference was not germane to the court's decision and was simply in response to the plaintiff's claim that the Yonkers Raceway is the only harness track in the New York metropolitan area.

 The other footnote (fn. 10), however, was pertinent to the instant action and it stated:

10. We admit that proof that other tracks in the state followed YRC's decision could establish state action since YRC's decision, in effect, would result in the de facto revocation of plaintiff's license. In fact, one of the principal reasons behind the conclusion that decisions by the New York Racing Association ("NYRA") are state action is the fact that NYRA, a not-for-profit-association operating New York's thoroughbred tracks, can preclude parties from working at virtually all of New York's thoroughbred tracks. See infra.

 This court's decision was affirmed by the Second Circuit in Hadges v. Yonkers Racing Corp., 918 F.2d 1079, cert. denied, 499 U.S. 960, 111 S. Ct. 1583, 113 L. Ed. 2d 648 (1990). The Second Circuit did not comment on the possibility that a showing that other tracks would be governed by the Raceway action might establish state action and federal jurisdiction, except to note that "Hadges offers us no credible evidence supporting such a de facto revocation." Id. at 1084.

 Although it was not revealed in plaintiff's moving papers, we find that plaintiff commenced a subsequent action in 1992 in the Supreme Court of the State of New York, County of Westchester. The complaint had several causes of action: among them, a claim of conspiracy among all the harness tracks in New York State to blackball the plaintiff from harness racing and a claim of a violation of New York State's anti-trust laws (the Donnely Act) by virtue of the tracks' concurrent actions.

 In a decision filed on December 4, 1992, Supreme Court Justice Vincent Gurahiam dismissed the entire case finding, inter alia, that it was within the discretion of Yonkers Raceway whether to allow plaintiff privileges at its facility since the harness race tracks "are vested with an ordinary business discretion and/or contractual right to preclude individuals from use of the facilities." Hadges v. Yonkers Racing Corp. decision at 4. The court also found that the state's statutory scheme concerning the racetracks (set forth in McKinney's Title 47A § 314) preempts application of the Donnely Act to the plaintiff's situation. That decision is presently on appeal in the New York State Appellate Courts.


 While his state appeal is still pending, the plaintiff has filed this third action seeking, in essence, to reopen his federal claim of a civil rights violation based upon two arguments related to the footnotes in this court's earlier decision. Presently before the court are plaintiff's motion for preliminary injunction and defendant's cross-motion to dismiss pursuant to Fed. R. ...

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