## Facts

- A professional jockey licensed in New York committed an infraction while riding at the Saratoga racetrack and received a suspension.
- The New York State Racing and Wagering Board maintained an unwritten practice known as the “Saratoga policy.”
- Under that policy, if a jockey committed an infraction at Saratoga and unsuccessfully appealed, the suspension had to be served during Saratoga racing days at the next Saratoga meet.
- After the jockey’s unsuccessful administrative appeal, the Board directed that the suspension be served during Saratoga racing days under the Saratoga policy.
- The jockey challenged the policy as an unpromulgated “rule” that could not be enforced because it was not adopted through SAPA notice-and-comment procedures.

## Issues

1. Whether the Board’s Saratoga policy had the attributes of a “rule” under SAPA § 102(2)(a)(i) as a stated policy of general applicability prescribing an agency procedure or practice requirement.
2. If the policy was a SAPA “rule,” whether it was unenforceable because it had not been formally promulgated under SAPA § 202.

## Decision

- The Court of Appeals modified the Appellate Division’s judgment.
- The court held the Saratoga policy constituted a SAPA “rule” because it was a fixed, generally applicable principle applied without regard to individual case circumstances.
- Because the policy was not promulgated under SAPA § 202, it could not lawfully be applied to require the suspension to be served during Saratoga racing days.
- The court annulled only the portion of the Board’s determination dictating service of the suspension during Saratoga racing days and remitted the matter to the Board for further proceedings; the underlying suspension was not set aside.

## Legal Principles

- A SAPA “rule” includes an agency’s stated policy of general applicability that prescribes a procedure or practice requirement of the agency. (SAPA § 102(2)(a)(i))
- A fixed and mandatory agency policy applied generally, rather than based on case-specific facts, is treated as a rule subject to SAPA rulemaking requirements.
- An agency may not enforce an unpromulgated policy of general applicability that functions as a binding procedural requirement; failure to comply with SAPA § 202 renders such a rule unenforceable in the case at hand.
- A policy governing when and where a penalty must be served can be a procedural rule, even if it does not set the amount of the penalty or directly regulate primary conduct.

## Conclusion

The court held that the Racing and Wagering Board’s unwritten Saratoga policy was a generally applicable, mandatory procedural rule under SAPA and therefore could not be used to require that a suspension be served during Saratoga racing days absent formal promulgation through SAPA rulemaking.


Matter of Cordero v. Corbisiero, 80 N.Y.2d 771, 599 N.E.2d 670 (1992)