process to applicants rather than exercising private business judgment. That case was rapidly settled, and plaintiff's right to drive, train and own harness race horses at the Meadowlands was restored. However, plaintiff points out that he lost privileges at the Meadowlands for a year and seeks to put the blame for that on the earlier action of the Yonkers Raceway. Plaintiff argues that defendant's claim in the 1989 federal court case that the Meadowlands was an available track constituted a fraud on the court.
We reject that argument for several reasons. As noted earlier, the availability of the Meadowlands in New Jersey was not an essential aspect of this court's earlier decision. Moreover, the fact that the New Jersey authorities would temporarily ban the plaintiff several years later was not something reasonably foreseeable to anyone at the time we granted defendant's motion for summary judgment. Indeed, Yonkers Raceway submits the names of a number of drivers who had been denied privileges at Yonkers but were allowed to race at the Meadowlands and elsewhere.
Plaintiff's second argument is that YRC's decision to bar plaintiff from racing at Yonkers Raceway served as a de facto revocation of his state racing license because the other harness racing tracks would follow YRC's lead and bar him from their facilities as well. Essential to the instant case is plaintiff's claim that there is a secret agreement among all of the trotting tracks that barring a licensee from one will result in the applicant being barred from all. This is the same conspiracy argument which failed to succeed in the New York State Courts.
As noted, plaintiff claims that he has been banned from each of the other five New York harness tracks (i.e., Batavia Downs, Buffalo Raceway, Monticello Raceway, Saratoga Raceway, and Vernon Downs). He claims to have made written application to each of them and not to have had a response. We find not only that he has failed to make any colorable support for his claim of universal state exclusion but that, indeed, the uncontested facts are to the contrary. The defendants have submitted proof that, with a single exception, none of the other tracks have any recollection of receiving any application from Hadges. The single exception is Monticello Raceway where, in fact, Hadges had racing privileges in 1991 and 1993. (His privileges in 1991 were suspended for a brief time for a minor infraction.) Indeed, he last raced at Monticello in November 1993, a month before he filed his moving papers claiming he had not worked in four years.
When seeking a preliminary injunction, the plaintiff must show 1) irreparable harm and 2) either a likelihood of success on the merits or sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping toward the party requesting injunctive relief. Jackson Dairy v. H.P. Hood & Sons, 596 F.2d 70, 72 (2d Cir. 1979).
We clearly find no basis for granting a preliminary injunction which, we note, would grant plaintiff the ultimate relief which he seeks in the case thereby altering the status quo. Plaintiff has failed to demonstrate either a probability of success on the merits or even sufficiently serious questions to make them a fair ground for litigation. Moreover, we believe summary judgment must be granted.
While defendant argues that res judicata and collateral estoppel from the earlier federal litigation should bar the instant action, we believe that if plaintiff were able to demonstrate collusion among the New York State harness tracks, and his inability to establish that fact in the earlier litigation, he might be able to evade the earlier federal judgment. He has, however, as noted above, completely failed in that attempt. In addition, the state case rested upon the very same claim and was decided on the merits rather than upon jurisdiction. That decision is clearly a bar to the instant litigation. To the extent that it is on appeal and, therefore, not to be considered a final judgment, the court could simply abstain in this case pending the outcome of that litigation. Under Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971), the issues raised in the state proceeding clearly implicated important state interests and the plaintiff had the opportunity to raise all constitutional challenges. Consequently, we grant the defendant's motion for summary judgment.
There remains for consideration only the defendant's application for sanctions under Rule 11. As we have noted, the current action lacks any substantial factual basis. We do not believe, however, that it was so frivolous as to warrant Rule 11 sanctions under the recently liberalized standards. We are, however, quite concerned over the attempt of the plaintiff and his counsel to indicate that he had not raced in four years when, in fact, he had privileges at Monticello in both 1991 and 1993. (The plaintiff does point out that his earnings at Monticello were minimal.) He has made matters worse by attempting to strengthen his claim of state involvement alleging that he was scratched from driving Me Gotta Bret on October 31, 1989 by the judges of the racing board. (October of 1989 was after the end of his suspension as a driver and at the time when he was seeking to have Yonkers reinstate him.) The document he submitted to establish this was undated. The defendants have submitted overwhelming proof that the event described did not occur at that time but rather took place in November 1987 while the plaintiff was under suspension.
This is an additional flagrant misrepresentation to the court and one that suggests the need for sanctions, certainly against the plaintiff and possibly against his counsel, William M. Kunstler. We note, however, that this final bit of proof came in the reply affidavit on the motion to dismiss filed in January so that plaintiff and his counsel were not afforded, as of right, an opportunity to respond. As it pertains to the application for sanctions, plaintiff will be given ten days from the date of the filing of this decision (plus three days for mailing) to submit any further papers he may wish on the sanction issue.
The entry of judgment will be delayed pending disposition of the sanction issue.
Dated: White Plains, N.Y.
March 14, 1994
GERARD L. GOETTEL