Too late to appeal judge’s decision in Speedway lawsuit RACETRACKS: Attorney for Batavia track and four others says season can’t be saved – The Daily…

The attorney for Genesee Speedway, LLC, and four other racetracks said its too late to appeal this weeks dismissal of a civil complaint against Gov. Andrew Cuomo and Attorney General Letitia James.

The racetracks, represented by Troy attorney Kenneth McGuire Jr., brought a lawsuit asking the U.S. District Court for the Northern District of New York, in part, to prevent Cuomo and James from enforcing gathering limits for outdoor activities if the spectators at those gatherings observe social distancing protocols. Aside from Genesee Speedway, located at the Genesee County Fairgrounds in Batavia, the racetracks in the lawsuit were Lebanon Valley Auto Racing Corp., Genesee Speedway, Airborne Speedway, Albany Saratoga Speedway and The Fonda Speedway.

Were not taking any further action at this point, because nothing would occur that would be relevant to the saving of the season, McGuire said Friday. The problem is an appeal takes between 60 to 90 days to get before a judge. It varies from area to area. Im sure it would be at least that long here.

At Genesee Speedway, following a three-week hiatus, the track was open again for racing last weekend.

The likelihood is the racetracks would run one or two more weeks at the most and then shut down for the season. McGuire said.

We have an option to file a new action. This decision would have to be appealed in 30 days, he said. McGuire said the 30-day window would begin when the state files the courts decision.

Its going to go way beyond having any effect. It doesnt make sense to spend the money (to take further action). Even if we win, we lose. The only hope we had was this preliminary injunction, which the court declined to give us.

Judge Lawrence Kahn of the U.S. District Court for the Northern District of New York announced his decision Tuesday. He also denied a motion for a temporary restraining order and preliminary injunction to keep the defendants Cuomo and James from enforcing orders which prevent the tracks from opening their businesses.

In his decision, Kahn said the racetracks made a First Amendment claim.

Plaintiffs allege that Defendants executive orders barring spectators from their racetracks infringe upon their freedom of speech, assembly, and expressive association, he wrote. Because Plaintiffs fail to identify any guiding legal authority supporting their First Amendment claim, the Court grants dismissal. Here, Plaintiffs make no allegation that Defendants actions were in retaliation against protected speech or conduct. There also does not appear to be any allegation that Defendants infringe upon expressive conduct.

The essence of the racetracks First Amendment claim, the judge said, appears to be that Cuomos edict forbidding spectators, infringes upon the right to assemble.

Kahn on Tuesday said regulations of commercial activity such as a racetrack spectator ban have First Amendment implications only if the activity in question is inseparably intertwined with a particularized message.

The Court is unable to discern any message so closely linked with auto racing or more specifically, its display in front of spectators to trigger First Amendment protection, the judge wrote.

The judge said the complaint by the racetracks included an equal protection claim. They appear to be arguing that their racetracks have been treated differently from other non-essential businesses and from protesters who have been in public demonstrations.

Defendants argue, and the Court agrees, that Plaintiffs equal protection claim must be dismissed for failure to allege specific facts showing that the comparators are similar in relevant respects, Kahn wrote.

On the racetrack spectator ban, Genesee Speedway and the other racetracks have not alleged any facts suggesting some racetracks have not been subject to enforcement, Kahn wrote.

The Court does not find the requisite rough equivalence between private, capacity-limited sports venues on one hand and attendees of public protests on the other. Because Plaintiffs have not plausibly pled facts suggesting they have been treated differently from others similarly situated, the Court grants Defendants motion to dismiss the equal protection claim.

I disagree with that. The thing that annoys me, he (Kahn) claimed that we didnt show that the rioters ... were not similarly situated as the people in the grandstands (at the racetracks).

McGuire said he and the racetracks were arguing that Cuomo cant exercise his power against the tracks and not exercise it against rioters.

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Too late to appeal judge's decision in Speedway lawsuit RACETRACKS: Attorney for Batavia track and four others says season can't be saved - The Daily...