Justice John Lahtinen
Monticello Raceway Management (MRM) owns the Monticello Raceway, a "racino" including harness horse racing and video gambling machines (VGMs). Concord Associates (CA) sought to establish a racino on its neighboring property. The Monticello Harness Horsemen’s Association is bargaining agent for harness horse drivers, trainers and owners. Under the first two years of their July 2008 agreement, MRM would pay the Association the greater of 8.75 percent of net wins from VGMs at Monticello Raceway or $5 million. CA would reimburse MRM the amount of any VGM shortfall. There were shortfalls of $122,500 in the first year and $185,000 in the second. CA posited that its reimbursement obligation applied for the cumulative two year period, and that because total VGM wins for those combined years exceeded $9 million, it did not owe MRM. Third Department affirmed supreme court’s finding that MRM was entitled to judgment on liability. The subject contract’s relevant provisions revealed CA obligated to reimburse MRM for the VGM shortfall payment to the Association, which was an annual one. The fact that CA’s obligation was not separately and specifically spelled out as an annual obligation was unavailing to its position.
