Summary
defining lottery as containing those three elements in a taxpayers' action seeking to enjoin the defendants from operating the game known as "Quick Draw"
Summary of this case from Dalton v. PatakiOpinion
June 25, 1996
Appeal from the Supreme Court, New York County (Louis York, J.).
The motion court properly found that petitioner was not entitled to a preliminary injunction as he failed to demonstrate a likelihood of success on the merits ( see, Grant Co. v. Srogi, 52 N.Y.2d 496, 517). The statute and regulations creating the lottery game (L 1995, ch 2, §§ 94-a — 94-g; 21 N.Y.CRR part 2835) are presumed constitutional, which presumption was not rebutted by petitioner beyond a reasonable doubt ( see, Matter of Klein [Hartnett], 78 N.Y.2d 662, 666, cert denied 504 U.S. 912). As the court found, Quick Draw contains all the essential features of a lottery, since a player tenders money for numerical selection, the winning numbers are randomly drawn, and the player receives a prize if the numbers match ( see, Penal Law § 225.00; Harris v. Economic Opportunity Commn., 171 A.D.2d 223). The court did not err in its analysis of the enabling legislation or in rejecting petitioner's contention that the game goes beyond the type of lottery contemplated by New York Constitution, article I, § 9 (1).
Concur — Sullivan, J.P., Milonas, Wallach, Ross and Nardelli, JJ.