                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: April 2, 2015                      518752
__________________________________

In the Matter of LUIS PENA,
                    Respondent,
      v

NEW YORK STATE GAMING                        MEMORANDUM AND ORDER
   COMMISSION,
                    Appellant.

(And Another Related Proceeding.)
__________________________________


Calendar Date:    February 20, 2015

Before:    Lahtinen, J.P., Garry, Rose and Devine, JJ.

                              __________


      Eric T. Schneiderman, Attorney General, Albany (Kathleen M.
Arnold of counsel), for appellant.

      Meyer, Suozzi, English & Klein, PC, Garden City (Andrew J.
Turro of counsel), for respondent.

                              __________


Rose, J.

      Appeals (1) from a judgment of the Supreme Court (Reilly
Jr., J.), entered October 9, 2013 in Schenectady County, which
partially granted petitioner's application, in a combined
proceeding pursuant to CPLR article 78 and action for declaratory
judgment, by directing the dismissal of the administrative
charges against petitioner, and (2) from a judgment of said
court, entered January 28, 2014 in Schenectady County, which
granted petitioner's application, in a combined proceeding
pursuant to CPLR article 78 and action for declaratory judgment,
to, among other things, enjoin respondent from taking further
administrative action against him based on the allegations
                               -2-                518752

underlying the administrative charges.

      Petitioner is a licensed trainer and owner of harness
racehorses in New York. Based upon charges that he was illegally
drugging his horses, the New York State Racing and Wagering Board
summarily suspended his license in May 2012.1 The matter then
proceeded to an administrative hearing in August 2012. In
February 2013, petitioner commenced a combined CPLR article 78
proceeding and declaratory judgment action seeking to, among
other things, vacate the suspension of his license based on
respondent's failure to render a determination within 30 days
after the hearing pursuant to Racing, Pari-Mutuel Wagering and
Breeding Law § 321. Supreme Court granted petitioner a temporary
restraining order reinstating his license pending a determination
and, when respondent had yet to make a determination after a full
year following the hearing, Supreme Court granted an October 2013
judgment, denominated as a decision and order, directing
respondent to dismiss the charges brought against petitioner.
Soon thereafter, respondent obtained its delinquent Hearing
Officer's overdue report and sought to finally determine the
administrative proceeding. Petitioner then commenced the second
combined proceeding and declaratory judgment action seeking a
declaration that respondent lacked authority to take any further
action against him. Supreme Court granted that relief in a
judgment entered in January 2014. Respondent appeals from both
judgments.

      We agree with respondent's argument that the 30-day
provision found in the statute is not a mandatory time limit and,
therefore, in the absence of any substantial prejudice to
petitioner, dismissal of the charges against him was not
warranted. Where, as here, a statute imposes a time limit within
which an administrative agency is to act, such a provision will
be considered directory, rather than mandatory, "unless the
language used by the Legislature shows that the designation of
time was intended as a limitation on the power of the body or


     1
        In February 2013, the Board merged into respondent, the
New York State Gaming Commission (see Racing, Pari-Mutuel
Wagering and Breeding Law § 102).
                              -3-                518752

officer" (Matter of Grossman v Rankin, 43 NY2d 493, 501 [1977];
accord Matter of Janus Petroleum v New York State Tax Appeals
Trib., 180 AD2d 53, 55 [1992]). Such a determination requires
consideration of the language of the statute and the legislative
intent (see Matter of Syquia v Board of Educ. of Harpursville
Cent. School Dist., 80 NY2d 531, 536 [1992]; Matter of King v
Carey, 57 NY2d 505, 513 [1982]).

      Racing, Pari-Mutuel Wagering and Breeding Law § 321
provides that, when respondent suspends a harness racing
participant's license, the licensee may demand a hearing and,
"[w]ithin thirty days after the conclusion of such hearing,
[respondent] shall make a final order in writing." The use of
"shall" is not conclusive, however, inasmuch as the statute does
not impose any limitation on respondent's power to act or provide
for any consequences for the failure to comply with the time
limit (see Matter of Grossman v Rankin, 43 NY2d at 501; Matter of
Janus Petroleum v New York State Tax Appeals Trib., 180 AD2d at
54-55; Matter of 400 Delaware Ave. Prop. Co. v State of N.Y. Div.
of Hous. & Community Renewal, 105 AD2d 1046, 1046-1047 [1984]).
Nor has petitioner cited any legislative history, and we are not
aware of any, suggesting that the 30-day provision in the statute
was intended to be mandatory. Rather, at the time this provision
was enacted, similar language in the Alcoholic Beverage Control
Law had been judicially determined to be directory (see Matter of
Brenner v Bruckman, 253 App Div 607, 609-610 [1938], appeal
dismissed 278 NY 503 [1938]), yet the Legislature imposed no
additional language limiting respondent's power to act when it
later enacted Racing, Pari-Mutuel Wagering and Breeding Law §
321.

      Where, as here, an agency fails to follow a procedural
provision that is merely directory, the subsequent determination
should only be judicially annulled when the challenger can "show
that substantial prejudice resulted from the agency's
noncompliance" (Matter of Dudley Rd. Assn. v Adirondack Park
Agency, 214 AD2d 274, 279 [1995], lv dismissed and denied 87 NY2d
952 [1996]; see Matter of Corning Glass Works v Ovsanik, 84 NY2d
619, 624 [1994]; Matter of ELG Utica Alloys, Inc. v Department of
Envtl. Conservation, 116 AD3d 1200, 1203 [2014], appeal dismissed
24 NY3d 929 [2014]). "The passage of time, standing alone, does
                                 -4-                  518752

not . . . serve as a basis for judicial intervention . . . into
the administrative process" (Matter of Cortlandt Nursing Home v
Axelrod, 66 NY2d 169, 177 [1985] [citations omitted], cert denied
476 US 1115 [1986]). Petitioner's challenge here does not
suggest in any way that the posthearing delay has handicapped him
in answering the charges or mounting a defense. Further, his
claim that he is prejudiced by his inability to earn a living as
a harness racehorse trainer and owner has been ameliorated by
Supreme Court's lifting of his summary suspension,2 and any
stigma attached to petitioner as a result of the charges would
have existed regardless of any delay in rendering the decision.
Accordingly, we cannot agree that petitioner sustained
substantial prejudice so as to require annulment of any
administrative action against him, and the judgments must be
reversed.

         Lahtinen, J.P., Garry and Devine, JJ., concur.



      ORDERED that the judgments are reversed, on the law,
without costs, and petitions dismissed.




                                ENTER:




                                Robert D. Mayberger
                                Clerk of the Court



     2
        Respondent has expressly agreed that petitioner's license
will remain in effect pending the final administrative
determination.
