State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: February 6, 2020
_________________________________
JENNIFER WHITE et al.,
RespondentsAppellants,
v

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OPINION AND ORDER

ANDREW CUOMO, as Governor of
the State of New York, et al.,
AppellantsRespondents.
_________________________________
Calendar Date:
Before:

November 14, 2019

Garry, P.J., Clark, Mulvey, Pritzker and Reynolds
Fitzgerald, JJ.
__________

Letitia James, Attorney General, Albany (Victor Paladino
of counsel), for appellants-respondents.
O'Connell and Aronowitz, Albany (Cornelius D. Murray of
counsel), for respondents-appellants.
Debevoise & Plimpton LLP, New York City (W. David Sarratt
of counsel) and Boies, Schiller & Flexner LLP, New York City
(Joshua Schiller of counsel), for Fanduel, Inc. and another,
amici curiae.
Perkins Coie LLP, New York City (Adam H. Schuman of
counsel), for Capital Region Gaming, LLC, amicus curiae.
__________

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Mulvey, J.
Cross appeals from an order of the Supreme Court
(Connolly, J.), entered October 31, 2018 in Albany County, which
(1) partially granted plaintiffs' motion for summary judgment,
and (2) partially granted defendants' cross motion for summary
judgment dismissing the complaint.
In August 2016, the Legislature amended the Racing, PariMutuel Wagering and Breeding Law by adding an article related to
the registration and regulation of interactive fantasy sports
(hereinafter IFS) contests (see Racing, Pari-Mutuel Wagering and
Breeding Law art 14, as added by L 2016, ch 237). Racing, PariMutuel Wagering and Breeding Law article 14 declares that IFS
contests do not constitute gambling and provides for consumer
safeguards, minimum standards and the registration, regulation
and taxation of IFS providers. Plaintiffs – several state
taxpayers who are or have been affected by the negative impacts
of gambling – commenced this action seeking a declaratory
judgment that article 14 violates NY Constitution, article I, §
9 and seeking to enjoin defendants from implementing the
statutes. After joinder of issue, plaintiffs moved for summary
judgment on their complaint. Defendants cross-moved for summary
judgment dismissing the complaint and for a declaration that
article 14 does not violate the NY Constitution. Supreme Court
partially granted plaintiffs' motion for summary judgment,
holding that article 14, to the extent that it authorizes and
regulates IFS, was void as in violation of NY Constitution,
article I, § 9. The court also partially granted defendants'
cross motion for summary judgment dismissing the complaint,
holding that article 14, to the extent that it excludes IFS from
the scope of the definition of "gambling" in Penal Law article
225, was not in violation of NY Constitution, article I, § 9.
Defendants appeal and plaintiffs cross-appeal.
Supreme Court properly granted summary judgment to
plaintiffs inasmuch as it found that Racing, Pari-Mutuel
Wagering and Breeding Law article 14, to the extent that it
authorizes IFS contests, permits gambling in violation of NY
Constitution, article I, § 9. "Legislative enactments enjoy a

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strong presumption of constitutionality and parties challenging
a duly enacted statute face the initial burden of demonstrating
the statute's invalidity beyond a reasonable doubt"
(Overstock.com, Inc. v New York State Dept. of Taxation & Fin.,
20 NY3d 586, 593 [2013] [internal quotation marks, ellipsis,
brackets and citations omitted], cert denied 571 US 1071 [2013];
see Schulz v State of N.Y. Exec., 138 AD3d 1197, 1201 [2016],
appeal dismissed 27 NY3d 1123 [2016]; Matter of Concerned Home
Care Providers, Inc. v State of New York, 108 AD3d 151, 154
[2013], lv dismissed 22 NY3d 946 [2013]). A
"basic tenet of constitutional and statutory
interpretation [is] that the clearest and
most compelling indicator of the drafters'
intent is the language itself. Resort must
be had to the natural signification of the
words employed, and if they have a definite
meaning, which involves no absurdity or
contradiction, there is no room for
construction, and courts have no right to
add to or take away from that meaning"
(Hernandez v State of New York, 173 AD3d
105, 111 [2019] [internal quotation marks,
brackets and citations omitted]; see Matter
of King v Cuomo, 81 NY2d 247, 253 [1993]).
The dissent asserts that "our judicial inquiry is limited
to deciding whether the Legislature rationally determined, after
hearing and considering evidence, that IFS contests are not
'gambling' as defined under Penal Law § 225.00" (dissenting op
at 12). The dissent implies that, in exercising our judicial
function in this action, we are limited to reviewing the
legislative record and determining whether the Legislature's
determination was rational. The parties' submission of a
statement of agreed-upon facts indicates that even they did not
believe that the courts are so limited in what we can consider.
Further, the cases relied upon by the dissent mainly use
this rationality standard to determine whether legislative
actions violate the Equal Protection Clause or the Due Process

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Clause of the NY and US Constitutions (see e.g. United States v
Carolene Products Co., 304 US 144, 154 [1938] [analyzing an
equal protection challenge by determining whether a rational
basis exists for the legislation whose constitutionality is
attacked]; Old Dearborn Distributing Co. v Seagram-Distillers
Corp., 299 US 183, 196 [1936]; Lincoln Bldg. Assoc. v Barr, 1
NY2d 413, 415 [1956], appeal dismissed 355 US 12 [1957]). In a
more recent case, while addressing arguments other than equal
protection challenges, the Court of Appeals – without mentioning
the source of factual information relied upon, or that such
information came from the legislative record or was before the
Legislature (see Dalton v Pataki, 5 NY3d 243, 263-265 [2005],
certs denied 546 US 1032 [2005]) – did not use the standard
invoked by the dissent here, but instead simply interpreted the
language of NY Constitution, article I, § 9 against legislative
enactments to determine for itself whether the statutes violated
that constitutional anti-gambling provision (id. at 263-265,
270-272; compare id. at 265-266 [addressing equal protection
challenge under the standard utilized by the dissent herein]).
We discern our judicial function here as more than simply
reviewing the legislative record to see if any known or assumed
facts could support the Legislature's choice, even if other
evidence would also support the opposite choice (compare Matter
of Marine Holdings, LLC v New York City Commn. on Human Rights,
31 NY3d 1045, 1047 [2018] [noting that courts must approve
agency action that is supported by substantial evidence in the
record, even where there is substantial evidence on both sides
of the issue]); rather, our role is to examine and interpret the
constitutional and statutory language, and to determine for
ourselves whether the legislative enactment violates the
explicit constitutional provision at issue (see Dalton v Pataki,
5 NY3d at 264-265).1 We do not rule on the wisdom of the
1

Contrary to the dissent's assertion, we do not contend
that Dalton "expanded our standard of review" (dissenting op at
13). Since long before that case, more than one standard of
review has existed, and courts must select the proper one
depending on the type of constitutional question involved (see
e.g. Campaign for Fiscal Equity, Inc. v State of New York, 86
NY2d 307, 314 [1995] [noting application of different tests to
equal protection challenges and a claim that legislation

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Legislature's enactment of laws, but on whether the NY
Constitution prohibited the Legislature from enacting such laws.
In the law being challenged, the Legislature declared that
IFS contests do not constitute gambling (see Racing, Pari-Mutuel
Wagering and Breeding Law § 1400 [2]). Because "[p]ublic policy
continues to disfavor gambling," exceptions to the
constitutional prohibition on gambling must be strictly
construed to ensure that they do not consume the rule itself
(Ramesar v State of New York, 224 AD2d 757, 759 [1996], lv
denied 88 NY2d 811 [1996]; see Molina v Games Mgt. Servs., 58
NY2d 523, 529 [1983]). As Supreme Court aptly observed,
allowing the Legislature unfettered discretion to determine what
is not gambling would render meaningless the constitutional
prohibition on "lottery or the sale of lottery tickets, poolselling, book-making, or any other kind of gambling" (NY Const,
art I, § 9 [1]) because this area would devolve to being
governed by statutory law and not by the constitutional
provision (see generally Dalton v Pataki, 11 AD3d 62, 90 [2004]
[holding that the general definition of lotteries advanced by
the defendants, which was consistent with all gambling, "would
expand the constitutional exception permitting state-run
lotteries to such an extent that it would swallow the general
constitutional prohibition on gambling"], mod 5 NY3d 243 [2005],
certs denied 546 US 1032 [2005]). Thus, IFS contests are not
excluded from the constitutional meaning of "gambling" merely
because the Legislature now says that it is so.
NY Constitution, article I, § 9 (1) provides that, aside
from certain enumerated exceptions, "no lottery or the sale of
lottery tickets, pool-selling, book-making, or any other kind of
gambling . . . shall hereafter be authorized or allowed within
this state; and the [L]egislature shall pass appropriate laws to
violated the NY Constitution's Education Article]; Board of
Educ., Levittown Union Free School Dist. v Nyquist, 57 NY2d 27,
43-49[1982]). As noted above, in Dalton, the Court of Appeals
applied different standards of review for equal protection
challenges (Dalton v Pataki, 5 NY3d at 265-266) than it did for
constitutional challenges requiring pure interpretation of the
anti-gambling provision (id. at 263-265, 270-272).

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prevent offenses against any of the provisions of this section."2
The NY Constitution does not define the word "gambling." In
1965, many years before the rise in popularity of IFS, the
Legislature defined "gambling" in the Penal Law (Penal Law §
225.00 [2]). According to that definition,
"[a] person engages in gambling when he [or
she] stakes or risks something of value upon
the outcome of a contest of chance or a
future contingent event not under his [or
her] control or influence, upon an agreement
or understanding that he [or she] will
receive something of value in the event of a
certain outcome" (Penal Law § 225.00 [2]).
"'Contest of chance' means any contest, game, gaming scheme or
gaming device in which the outcome depends in a material degree
upon an element of chance, notwithstanding that skill of the
contestants may also be a factor therein" (Penal Law § 225.00
[1]).
Although, at earlier points in this litigation, defendants
conceded that these Penal Law definitions are appropriate to
apply in interpreting the constitutional provision at issue
here, defendants now contend that the statutory definition is
broader than required under the NY Constitution. They assert
that we should instead use the standard applied by the Court of
Appeals in People ex rel. Ellison v Lavin (179 NY 164, 170-171
[1904]), namely, that "[t]he test of the character of the game
is not whether it contains an element of chance or an element of
skill, but which is the dominating element that determines the
result of the game." Contrary to defendants' argument, the
2

Exceptions to the constitutional prohibition on gambling
that have been approved by the people and are now enshrined in
that constitutional provision include state-run lotteries with
the proceeds going to support education, pari-mutuel wagering on
horse races as prescribed by the Legislature, games of chance
conducted by religious or charitable organizations, and "casino
gambling at no more than seven facilities as authorized and
prescribed by the [L]egislature" (NY Const, art I, § 9 [1]).

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Court of Appeals did not propound this as the, or even a,
standard for determining whether something constituted gambling
under the NY Constitution, as Ellison involved the
interpretation of the statutory definition of "lottery" under
the then-applicable Penal Law (id. at 168). Thus,
"[t]he current definition of 'contest of
chance,' does not require that the element
of chance be the 'dominating element.'
Rather, it is a 'contest of chance' when,
notwithstanding that the skill of the
contestants may be a factor in the outcome,
the outcome depends in a 'material degree'
upon an element of chance" (William D.
Donnino, Practice Commentaries, McKinney's
Cons Laws of NY, Penal Law § 225.00; see
1984 Ops Atty Gen No. 84-F1 at 8 [noting
that "(a)n attentive reading of the 1965
Penal Law shows that the Legislature
rejected (the Ellison) test in crafting" new
Penal Law definitions]).
We find that the current Penal Law definition comports
with the common understanding of the meaning of the
constitutional prohibition and of the particular words "bookmaking" and "gambling" – at both the time of the prohibition's
enactment and now. Therefore, we accept the Legislature's own
definition of gambling, as included in the Penal Law since 1965,
as the appropriate definition for courts to apply when
interpreting that word in the pertinent constitutional provision
(see Dalton v Pataki, 5 NY3d at 264 [seeking to determine the
meaning of a term that is undefined in NY Constitution, article
I, § 9 by looking first to the Penal Law definition of that
term]; see also Matter of Plato's Cave Corp. v State Liq. Auth.,
115 AD2d 426, 428 [1985] [applying Penal Law § 225.00
definitions relating to gambling offenses to provisions of the
Alcoholic Beverage Control Law, which does not contain
definitions of related terms], affd 68 NY2d 791 [1986]). It is
undisputed that IFS contestants pay an entry fee (something of
value) in hopes of receiving a prize (also something of value)

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for performing well in an IFS contest. Therefore, such contests
constitute gambling if their outcomes depend to "a material
degree upon an element of chance, notwithstanding that skill of
the contestants may also be a factor therein," such that they
are contests of chance (Penal Law § 225.00 [1]), or if they
depend on a "future contingent event not under [the
contestants'] control or influence" (Penal Law § 225.00 [2]).
According to the statement of agreed-upon facts that was
submitted by the parties regarding how IFS contests operate,
online IFS providers offer their subscribers season-long,
weekly, and daily online IFS contests. Participants in such
contests select fantasy teams of real-world athletes and compete
against other contestants based on a scoring system that awards
points based on the performances of the selected individual
athletes in actual sporting events that are held after the IFS
contest is closed and no more participants may enter the
contest. Participants in IFS contests may use, among other
things, their sports knowledge and statistical expertise to
determine how athletes individually, and their fantasy teams
overall, are likely to perform in such sporting events.
Participants cannot control how the athletes on their fantasy
sports teams will perform in such sporting events, and the
winnings paid to successful online IFS contestants come from the
entry fees paid by all contestants.
For purposes of this discussion, we accept the information
considered by the Legislature indicating that IFS contests are
contests requiring skill. For example, research demonstrated
that lineups chosen by actual contestants beat those chosen at
random and contestants improve their performance over time.
Additionally, a very small percentage of IFS contestants receive
a very large percentage of the prize money, suggesting that the
skills exercised by this small percentage of winners actually
affects the outcome of these contests. Nevertheless, skill and
chance are not mutually exclusive; they often coexist.3 The
determinative question is whether IFS contests involve a
3

Indeed, the statutory definition of "contest of chance"
acknowledges that skill may play a role in an activity that
qualifies as gambling (see Penal Law § 225.00 [1]).

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material degree of chance. According to the statement of
agreed-upon facts, although participants in IFS contests may use
their skill in selecting teams, they cannot control how the
athletes on their IFS teams will perform in the real-world
sporting events. For example, those performances could be
affected by such disparate circumstances as, among other things,
player injury or illness, unexpected weather conditions, poor
officiating, a selected player having a particularly bad day or
an unselected player having a surprisingly good day. In other
words, the skill level of an IFS contestant cannot eliminate or
outweigh the material4 role of chance in IFS contests. Thus, we
agree with Supreme Court's interpretation and finding that
plaintiffs met their burden to demonstrate beyond a reasonable
doubt that Racing, Pari-Mutuel Wagering and Breeding Law article
14, to the extent that it authorizes or regulates IFS (see
Racing, Pari-Mutuel Wagering and Breeding Law §§ 104 [23]; 1400
[1], [3]; 1402-1411), is unconstitutional because it violates
the prohibition against gambling in NY Constitution, article I,
§ 9.
However, we preserve Racing, Pari-Mutuel Wagering and
Breeding Law § 1412, which states that "[t]he conduct of
unregistered [IFS] contests is prohibited." Because, due to our
invalidation of most of Racing, Pari-Mutuel Wagering and
Breeding Law article 14, no IFS contests can now be registered,
section 1412 is consistent with the NY Constitution's
prohibition on gambling inasmuch as the statute prohibits IFS
contests.
Now that we have upheld Supreme Court's invalidation of
the majority of Racing, Pari-Mutuel Wagering and Breeding Law
article 14, we must determine whether the court properly upheld
the portion of that article that excludes IFS contests from the
scope of the definition of gambling in Penal Law § 225.00 (see
4

The dissent cites evidence that was before the
Legislature wherein certain witnesses opined that the degree of
chance involved in IFS contests is not material. We, however,
reject the notion that materiality can be quantitatively
determined. In our view, the question of whether the element of
chance is material is a qualitative determination.

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Racing, Pari-Mutuel Wagering and Breeding Law § 1400 [2]). More
specifically, we must determine whether the decriminalization
provision violates the NY Constitution and, if not, is it
possible or proper to salvage that provision or must the
entirety of article 14 be invalidated.
As quoted earlier, the relevant part of NY Constitution,
article I, § 9 states that "no lottery or the sale of lottery
tickets, pool-selling, book-making, or any other kind of
gambling . . . shall hereafter be authorized or allowed within
this state; and the [L]egislature shall pass appropriate laws to
prevent offenses against any of the provisions of this section"
(NY Const, art I, § 9 [1]). This provision "was not intended to
be self-executing . . . as it expressly delegates to the
[L]egislature the authority, and requires it[,] to enact such
laws as it shall deem appropriate to carry it into execution"
(People ex rel. Sturgis v Fallon, 152 NY 1, 11 [1897]). For
example, the Court of Appeals upheld the Legislature's
decriminalization of wagering at licensed horse tracks (which,
at that time, was not yet permitted under an exception to NY
Constitution, article I, § 9), noting that
"[t]he authority to prescribe the punishment
for the offenses mentioned in that provision
of the Constitution is expressly conferred
upon the [L]egislature, which necessarily
included a delegation to it of the power and
authority to increase or decrease the
punishment for offenses of that character to
such an extent as the [L]egislature deemed
proper" (id. at 10).
An activity can be prohibited without being criminalized (see
e.g. id. [discussing a statute that prohibited certain wagering
and provided that the sole penalty would be a civil forfeiture
of the sum wagered]; Penal Law § 221.10, as amended by L 2019,
ch 131, § 2 [prohibiting unlawful possession of more than one
ounce of marihuana as a violation, not a crime]). As NY
Constitution, article I, § 9 grants the Legislature the
authority to pass laws that it deems appropriate to further the

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purposes of that constitutional provision, including laws that
decrease penalties previously imposed, courts may not substitute
their own judgment of what they deem "appropriate or sufficient
to prevent such [gambling] offenses" (People ex rel. Sturgis v
Fallon, 152 NY at 10). Thus, the Legislature's enactment of the
provision of Racing, Pari-Mutuel Wagering and Breeding Law
article 14 removing IFS from the Penal Law definition of
gambling did not, by itself, violate the NY Constitution.
As to whether a portion of Racing, Pari-Mutuel Wagering
and Breeding Law article 14 can be severed,
"[t]he answer depends on whether the
[L]egislature, if partial invalidity had
been foreseen, would have wished the statute
to be enforced with the invalid part
exscinded, or rejected altogether. If
removing particular provisions while leaving
the remainder intact would result in a law
the Legislature would not have intended, the
entire statute must be stricken" (Matter of
Hynes v Tomei, 92 NY2d 613, 627 [1998]
[internal quotation marks and citations
omitted], cert denied 527 US 1015 [1999];
see People v On Sight Mobile Opticians, 24
NY3d 1107, 1109 [2014]; CWM Chem. Servs.,
L.L.C. v Roth, 6 NY3d 410, 423 [2006]).
Supreme Court upheld the part of article 14 that provides that,
"[b]ased on the findings in [Racing, Pari-Mutuel Wagering and
Breeding Law § 1400 (1)]" – including that IFS contests are not
games of chance – "the [L]egislature declares that [IFS contests
do] not constitute gambling in New York state as defined in
[Penal Law article 225]" (Racing, Pari-Mutuel Wagering and
Breeding Law § 1400 [2]). We recognize that the Legislature was
sympathetic to and supportive of IFS participants (see e.g.
Racing, Pari-Mutuel Wagering and Breeding Law § 1400 [3]).
Nevertheless, we have rejected the Legislature's explicitly
stated basis for the removal of IFS from the Penal Law
definition of gambling (see Racing, Pari-Mutuel Wagering and

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Breeding Law § 1400 [1]). Moreover, as part of the same
legislation that decriminalized IFS, the Legislature clearly
intended that IFS contests be heavily regulated (see Racing,
Pari-Mutuel Wagering and Breeding Law §§ 1400 [3]; 1402-1406).
Hence, we conclude that the Legislature, if it had envisioned
the possibility that courts would invalidate the majority of
article 14, would not have wished to preserve the
decriminalization of IFS located in Racing, Pari-Mutuel Wagering
and Breeding Law § 1400 (2). Thus, we refuse to sever that
provision, and invalidate it as well.
Garry, P.J., Clark and Reynolds Fitzgerald, JJ., concur.
Pritzker, J. (dissenting).
Because it is my opinion that the amendment to the Racing,
Pari-Mutuel Wagering and Breeding Law relating to interactive
fantasy sports (hereinafter IFS) contests (see Racing, PariMutuel Wagering and Breeding Law art 14, as added by L 2016, ch
237) was constitutionally enacted, I respectfully dissent. To
begin, one cannot disagree that our judicial inquiry is limited
to deciding whether the Legislature rationally determined, after
hearing and considering evidence, that IFS contests are not
"gambling" as defined under Penal Law § 225.00 (see Lincoln
Bldg. Assoc. v Barr, 1 NY2d 413, 417-418 [1956], appeal
dismissed 355 US 12 [1957]). Bearing in mind that our inquiry
is narrow, it is my opinion that Racing, Pari-Mutuel Wagering
and Breeding Law article 14 was constitutionally enacted because
the legislative record supports that the outcome in an IFS
contest neither depends upon (1) a "material degree upon an
element of chance" nor (2) "a future contingent event not under
[the contestants'] control or influence" (Penal Law § 225.00
[1], [2]). As such, the lawmakers properly determined that an
IFS contest is not a constitutionally prohibited gambling
activity and our decidedly non de novo inquiry ends (see Lincoln
Bldg. Assoc. v Barr, 1 NY2d at 417-418).1 Although this ultimate
1

It is important to note that the Legislature found that
IFS contests are not gambling and thus did not need to "exempt"
them from the gambling prohibition contained in NY Constitution,

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finding is certainly debatable – and was debated by the
Legislature – absent irrationality, whether we would vote "no"
on the floor of the Legislature is unrelated to our
circumscribed judicial function and review of this particular
law,2 which neither encroaches upon a fundamental right nor
affects a protected class (see e.g. Lincoln Bldg. Assoc. v Barr,
1 NY2d at 415; compare Randall v Sorrell, 548 US 230, 241
[2006]; Califano v Westcott, 443 US 76, 78 [1979]; Hernandez v
State of New York, 173 AD3d 105, 114 [2019]). Similarly,
plaintiffs' differing opinions as to the core issues, even if,
as judges, we were to agree with them, cannot crest the steep
summit required to declare the legislation facially
article I, § 9. As such, the cases relied upon by the majority,
which suggest that the challenged statute must be strictly
construed, are inapposite, as they involve activities that are
clearly gambling, such as the lottery, which were exempted by
the Legislature (cf. Ramesar v State of New York, 224 AD2d 757,
759 [1996], lv denied 88 NY2d 811 [1996]; Molina v Games Mgt.
Servs., 58 NY2d 523, 529 [1983]; Dalton v Pataki, 11 AD3d 62, 80
[2004], mod 5 NY3d 243 [2005], certs denied 546 US 1032 [2005]).
Further, the majority contends that Dalton v Pataki (5 NY3d 243
[2005], certs denied 546 US 1032 [2005]) expanded our standard
of review, because the Court of Appeals "simply interpreted the
language of NY Constitution, article I, § 9 against legislative
enactments to determine for itself whether the statutes [at
issue] violated [the] constitutional anti-gambling provision"
(majority op at 4, citing Dalton v Pataki, 5 NY3d at 270-272).
However, the cited portion of that decision is inapposite
because there was specific documentary evidence, particularly a
Mega Millions agreement and the Tax Law, which refuted the
plaintiffs' claims of unconstitutionality (id. at 270-272). As
such, there was no need for the Court to review the legislative
record.
2

Our judicial function and review is constitutionally
mandated in part by the separation of powers (see generally
Campaign for Fiscal Equity, Inc. v State of New York, 8 NY3d 14,
28 [2006]; Cohen v State of New York, 94 NY2d 1, 8 [1999];
Hussein v State of New York, 81 AD3d 132, 134 [2011], affd 19
NY3d 899 [2012]).

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unconstitutional. Simply stated, our inquiry rests solely on
whether the Legislature rationally found that IFS contests are
not gambling when enacting Racing, Pari-Mutuel Wagering and
Breeding Law article 14.
In this vein, there is no dispute that legislative
enactments enjoy a strong presumption of constitutionality (see
Cohen v State of New York, 94 NY2d 1, 8 [1999]; Schulz v State
of N.Y. Exec., 138 AD3d 1197, 1200-1201 [2016], appeal dismissed
27 NY3d 1123 [2016]), and opponents must surmount the heavy
burden to establish the statute's unconstitutionality "beyond a
reasonable doubt" (Matter of Moran Towing Corp. v Urbach, 99
NY2d 443, 448 [2003] [internal quotation marks omitted]).
Plaintiffs, in mounting a facial constitutional challenge, "bear
the burden to demonstrate that[,] 'in any degree and in every
conceivable application,' the law suffers wholesale
constitutional impairment" (Cohen v State of New York, 94 NY2d
at 8, quoting McGowan v Burstein, 71 NY2d 729, 733 [1988]).
Facial challenges to statutes are disfavored (see Washington
State Grange v Washington State Republican Party, 552 US 442,
450 [2008]; People v Stuart, 100 NY2d 412, 422 [2003]), and,
where the Legislature engaged in "line-drawing" within gray
areas (FCC v Beach Communications, Inc., 508 US 307, 315
[1993]), such as comparing the elements of chance and skill
involved in the outcome of an IFS contest, "restraints on
judicial review have added force" (id.).
While the presumption of constitutionality is not
irrebuttable (see Defiance Milk Prods. Co. v Du Mond, 309 NY
537, 541 [1956]), and "courts may scrutinize the basis of
legislative enactments predicated upon the existence of a
particular state of facts" (Lincoln Bldg. Assoc. v Barr, 1 NY2d
at 415; see Defiance Milk Prods. Co. v Du Mond, 309 NY at 541),
"[w]here[, as here,] the question of what the facts establish is
a fairly-debatable one, we accept and carry into effect the
opinion of the Legislature" (Old Dearborn Distributing Co. v
Seagram-Distillers Corp., 299 US 183, 196 [1936]; Matter of
Stubbe v Adamson, 220 NY 459, 469 [1917]). As such, courts may
not substitute their judgment for that of the Legislature so
long as there is "any state of facts either known or which could

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reasonably be assumed" that support the legislative decision to
act (United States v Carolene Products Co., 304 US 144, 154
[1938]; see East New York Sav. Bank v Hahn, 326 US 230, 234
[1945]; South Carolina Highway Dept. v Barnwell Brothers, Inc.,
303 US 177, 191 [1938]). Of course, we are the ultimate
arbiters of constitutionality (United States v Morrison, 529 US
598, 614 [2000]; Campaign for Fiscal Equity, Inc. v State of New
York, 8 NY3d 14, 28 [2006]), and, as such, Racing, Pari-Mutuel
Wagering and Breeding Law article 14 is not immune from judicial
scrutiny. Thus, I agree with the majority that "IFS contests
are not excluded from the constitutional meaning of 'gambling'
merely because the Legislature now says that it is so" (majority
op at 5). However, here, no such political ipse dixit was
afoot, as the record demonstrates with vigor that the lawmakers,
without caprice, acted rationally, carefully and with measured
consideration.3
Before exploring the record, one must be mindful of the
respective burdens that the parties carry on these cross
motions. It is my opinion that plaintiffs failed to meet their
prima facie burden of establishing that Racing, Pari-Mutuel
Wagering and Breeding Law article 14 was facially
unconstitutional beyond a reasonable doubt. Their submissions
were almost entirely dehors the legislative record and consisted
of, among other things, (1) affidavits from plaintiffs Jennifer
White and Charlotte Wellins wherein they detail the sad impact
that gambling has had on their lives,4 (2) a copy of the Laws of
1895 (ch 572), amending former Penal Law § 351, (3) copies of a
settlement agreement entered into by the Office of the Attorney
General of the State of New York and FanDuel, Inc., (4) a copy
3

In my view, the only ipse dixit that has been propounded
is that of plaintiffs, who assert their own opinions as facts,
but at the same time brand opposing opinions as fiction. This
framing – conflating fact and opinion – is however needed to
advance their notion that the enactment is facially
unconstitutional.
4

As social concerns are within the sole province of the
Legislature (see Boreali v Axelrod, 71 NY2d 1, 13 [1987]), to
the extent the affidavits are probative, neither references IFS.

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of a New York Times crossword puzzle and solution thereto and
(5) the 2016 annual report of the New York Gaming Commission.5
The opinions contained therein are both interesting and
heartfelt, but they are nothing more than that, opinions. While
raising legitimate legal questions and important social
concerns, they do little more than establish that the
Legislature, in finding that IFS contests are not gambling,
reached different conclusions, which is a woefully inadequate
foundation to meet their burden of establishing beyond a
reasonable doubt that Racing, Pari-Mutuel Wagering and Breeding
Law article 14 is facially unconstitutional.6
In my view, the opinions offered by plaintiffs, while
challenging the basis of the Legislature's findings, were
insufficient to shift the burden to defendants to prove the
constitutionality of Racing, Pari-Mutuel Wagering and Breeding
Law article 14. Further, even if the burden was somehow
shifted, to defeat summary judgment, it would not be defendants'
burden to disprove plaintiffs' opinions, but rather to offer a
rational contrary opinion based upon the Legislature's review of
the information before it (see generally Lincoln Bldg. Assoc. v
Barr, 1 NY2d at 419-420). Here, the Legislature's judgment
necessarily involved determining whether an IFS contest is a
"game of chance" and, as such, analyzing whether the degree of
chance is "material" in determining the outcome of an IFS
contest. Because it is not seriously disputed that an IFS
contest involves a high degree of skill, as was found by Supreme
Court, then determining whether the degree of chance inherent in
an IFS contest is "material" presented a difficult and nuanced
5

Contrary to the majority's characterization, I do not
believe we are "limited to reviewing the legislative record"
(majority op at 3), but it is undoubtedly a crucial part of our
review.
6

Plaintiffs' argument would have teeth if, for example,
the Legislature found that roulette is not gambling – which is a
patently unsupportable opinion given that the game is randomly
determined by chance – or if the Penal Law required only "a"
degree of chance.

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question for the Legislature.7 And, although it may have been
rational to determine that the amount of chance in an IFS
contest is material, as did some of the legislators who voted
against the bill, it was not at all unreasonable, based upon the
legislative record, to conclude otherwise. The difference is
that the legislation bears the imprimatur and presumption of
constitutionality and, thus, summary judgment should not have
been granted in favor of plaintiffs.
As to defendants' cross motion for summary judgment, which
Supreme Court partially denied, we turn first to the legislative
record. On December 8, 2015, the Assembly Standing Committee on
Racing and Wagering and the Consumer Affairs and Protection
Legislative Commission duly noticed and held a lengthy public
hearing regarding IFS in which 11 witnesses testified and were
subject to questions from the floor. The lawmakers heard from
IFS advocates, as well as those who were opposed to the
legislation. In addition, the Senate, Assembly and respondent
Governor received many written submissions relevant to the
issues at hand, including support from professional sports
teams, which are traditionally opposed to sports betting.
Notably, the Legislature considered, debated and made detailed
findings on the salient issues raised by plaintiffs. Indeed,
the Legislature considered a broad range of evidence concerning
the critical issue of the amount of skill and chance that is
involved in influencing the outcome of IFS contests. The record
reveals that different lawmakers reached different conclusions
as to this very issue. In fact, some legislators analogized IFS
to day trading, while others believed the activity was more akin
to sports betting. These competing opinions were the function
of the rational consideration of opposing views, resulting in
7

Materiality is an amorphous term and the difficulty in
utilizing this ambiguous standard has been recognized in the
commentary to Penal Law § 225.00, which states that "[t]he
modernization of the definition of 'a contest of chance' has
not, however, made it easier for courts to discern whether a
game is a contest of chance" (William C. Donnino, Practice
Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law §
225.00 at 356 [2008 ed]).

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the legitimate findings of fact that formed the cornerstone of
Racing, Pari-Mutuel Wagering and Breeding Law article 14.
Although there was a great deal of evidence as to the
predominance of skill inherent in an IFS contest, notably, there
was also evidence, both written and oral, that "[c]hance is
overwhelmingly immaterial in the probability of winning . . .
fantasy games."8 In addition, in distinguishing between systemic
chance random-type games and IFS, one witness testified that
"fantasy sports are played by considering a
number of interlocking and often shifting
factors through strategic risk taking and
decision making [which] help predict an
abnormally diverse set of future events.
This difference – the lack of systemic
chance [–] is why [IFS contests] are not
gambling and why chance is not a material
element in the outcome of [IFS] contests."
An Assembly Member directly raised the issue of materiality with
another IFS advocate, who stated that "the degree of chance
comes nowhere close to material for daily fantasy sports."
Although the Legislature was free to disregard this evidence,
our own inquiry is more circumspect; we must ask ourselves this
question – whether, after due consideration, was the conclusion
drawn by the vast majority of legislators rational? In my
opinion it was and, as such, the Legislature could, and did,
reasonably determine that the outcome of an IFS contest does not
depend, to a material degree, on chance, and the activity is not
gambling under that category.
Similarly, the legislative record amply supports the
finding that IFS contests are not games of chance under Penal
Law § 225.00 (2) because, although the participants do pay an
8

The speaker was quoting a study conducted by the former
Chair of the Department of Statistics at Hebrew University,
examining the win percentage of 28 of the most successful
players in an IFS contest run by DraftKings, a company that
hosts IFS contests.

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entry fee, success is not tethered to "a future contingent event
not under [the participants'] control or influence" (emphasis
added). Here, Supreme Court incorrectly focused on the fact
that the participants do not have actual influence over the
athletes. However, this notion was debated by the Legislature
and it ultimately concluded that the proper focus is not on the
participants' influence over the real world events and a
specific athlete's performance, but the participants'
unquestionable influence on winning the contest by making
skillful choices in assembling a fantasy roster. Indeed, the
plethora of evidence that was rationally relied upon by the
Legislature in finding that IFS contests are predominantly
contests of skill – a finding that Supreme Court accepted – also
supports the notion that IFS contestants meaningfully, using
certain parameters such as data and salary cap management,
influence the outcome of the contests. Further, the Legislature
reasonably found that IFS contest participants are active
players in a separate competition that is clearly unconnected to
any one single sporting event and, as such, rationally
distinguished IFS contests from sports gambling. Indeed, the
companies hosting these IFS contests neither offer single event
competitions nor rosters that mirror actual teams. Therefore,
the Legislature rationally found that there is a clear
"difference between paying fees to participate in fantasy
leagues and single-game wagering" (i.e., sports betting)
(National Collegiate Athletic Ass'n v Governor of New Jersey,
730 F3d 208, 223 n 4 [3d Cir. 2013]). Thus, it was rational to
find that IFS contests are not based upon the outcome of a
"future contingent event not under [the participant's] control
or influence" (Penal Law § 225.00 [2]).
In conclusion, because I find that the Legislature acted
rationally based upon the evidence before it, it is my opinion
that Racing, Pari-Mutuel Wagering and Breeding Law article 14 is
constitutional on its face and, therefore, Supreme Court erred
in partially granting plaintiffs' motion for summary judgment.
Rather, it should have granted defendants' cross motion for
summary judgement dismissing the complaint, rendering academic
defendants' remaining arguments.

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ORDERED that the judgment is modified, on the law, without
costs, by reversing so much thereof as upheld Racing, PariMutuel Wagering and Breeding Law § 1400 (2); it is declared that
(1) Racing, Pari-Mutuel Wagering and Breeding Law § 1400 (2) is
void, and (2) Racing, Pari-Mutuel Wagering and Breeding Law §
1412 does not violate NY Constitution, article I, § 9; and, as
so modified, affirmed.

ENTER:

Robert D. Mayberger
Clerk of the Court