Western Regional Off-Track Betting Corp.

A U.S. District Court judge today dismissed a lawsuit against Western Regional Off-Track Betting Corp. that was filed by Michael Nolan, a former chief operating officer of the public benefit company based in Batavia.

Justice William Skretny, representing the Western District of New York in Buffalo, based his ruling on a statute of limitations issue regarding Nolan’s claim that his First Amendment rights were violated when the corporation’s leadership allegedly retaliated against him for talking to federal agencies about alleged improprieties.

Nolan contended that he was fired from his position in December 2020 after being ostracized since April 2019 for sharing information with federal and state authorities as part of an inquiry into practices such as health insurance plans for board members, use of sports tickets and luxury boxes, and awarding of contracts.

WROTB officials retained legal counsel to fight the allegations – eventually filing a Motion to Dismiss -- and the matter has been tied up in court until today’s ruling.

“We are gratified by today’s District Court decision,” WROTB President and Chief Executive Officer Henry Wojtaszek said in a press release. “From the beginning we have stated that these accusations were politically motivated.  We continue to believe that any thorough examination of the facts would show Western OTB acted in an appropriate and professional manner.

“The ruling by Judge Skretny was clearly well researched, well-reasoned, and came to the right conclusion. We will continue to focus on being a model OTB in the state and providing our customers with the best possible experience. Results matter, and the leadership at WROTB has made decisions that have resulted in record revenues being disbursed to our partners in local governments across the area. We look forward to building on that success now that these baseless allegations have been dismissed.” 

In his ruling, Skretny wrote that since Nolan’s claims alleging First Amendment retaliation ran from the first alleged instance of retaliation, “accruing not later than April 30, 2019.” Another complaint dated August 2021 came too late, the judge ruled, citing the statute of limitations at 1 year and 30 days after the first alleged instance.

“Therefore, Plaintiff’s (Nolan’s) First Cause of Action for First Amendment retaliation is dismissed as untimely and Defendants’ (WROTB) Motion to Dismiss … this cause of action is granted.”

Skretny concluded by stating that “absent an original jurisdiction claim, this Court also declines to exercise supplemental jurisdiction over Plaintiff’s remaining state law claims and dismisses them without prejudice. Thus, Defendants’ Motion (id.) to dismiss the Second through and Fifth Causes of Action is granted. Therefore, Defendants’ Motion to Dismiss … is granted and the case is closed.”

In August 2021, attorney Steven M. Cohen of HoganWillig, PLLC, of Buffalo filed a lawsuit on behalf of Nolan against WROTB, Wojtaszek and Richard Bianchi, chairman of the board of directors. The suit asked for Nolan to receive $4.5 million for violating his First Amendment rights (First Cause of Action), plus another $4.5 million for breaking the state’s Civil Service Law (Second Cause of Action) and additional $5.5 million for emotional pain and suffering (Third Cause of Action).

The Fourth Cause of Action sought indemnification and/or reimbursement of Nolan's attorneys’ fees from WROTB for representation for his appearance before the federal Grand Jury, and the Fifth Cause of Action alleged that WROTB violated New York Labor Law by retailing against Nolan.

Wojtaszek, in the press release, said he believes the dismissal once again vindicates the corporation.

“WROTB has won another victory in court against a frivolous attack on our operations. This is our fourth victory this year, against what appears to be a never-ending string of attacks by those with an ax to grind,” he said. “As we stated during our meeting with our 17 member counties last week, we have done much to improve the transparency and accountability of our organization, but many of the charges that were thrown at us were simply unfounded, and that was again underscored today in federal court.

“Lawsuits get dismissed when people miss deadlines. It must not have been a priority for Mr. Nolan or his attorney, which sometimes happens when you start with a baseless claim.”

WROTB was represented by Daniel Oliverio and Aaron Saykin of Hodgson Russ, a Buffalo law firm.

An email was sent to Cohen on Thursday morning, seeking comment on the decision.

Management of Western Regional Off-Track Betting Corp., in an effort to provide transparency in the wake of challenges to its policies and procedures, presided over a three-hour session with chief financial officers from seven of its 17 member municipalities this afternoon at the Park Road facility’s board room.

The public benefit company has been hounded in recent months by an audit from the New York State Comptroller’s Office, by charges of fiscal irresponsibility by a disgraced former state senator and, most recently, by a series of letters sent by Erie County Comptroller Kevin Hardwick seeking answers to questions concerning the following issues:

• The sale of the Hotel at Batavia Downs (dated July 15);
• Benefits (specifically ‘gold-plated’ health insurance) received by board members (July 18);
• The use of external legal counsel (Aug. 1);
• The retention of outside lobbyists (Aug. 8);
• The possible misuse of promotional and marketing materials (Aug. 24).

WROTB President/Chief Executive Officer Henry Wojtaszek, speaking by telephone this evening, said he “appreciated that Hardwick was trying to get information” and added that the meeting ultimately will strengthen the corporation’s relationship with the municipalities.

“Overall, I think the meeting went extremely well and was productive for all involved,” Wojtaszek said. “Our goal is to be transparent, so we were happy to provide them with good, positive economic news that is resulting in record revenues to various counties this year.”

Corporation officials who made presentations at the session, along with Wojtaszek, were Chief Financial Officer Jacquelyne Leach, Compliance Consultant Paul Moskal, Marketing Director Ryan Hasenauer and David Hart of Hart Hotels, which operates the hotel.

Genesee County Treasurer Scott German said he attended the meeting to learn more about WROTB’s methods.

“They started off by essentially going over the financials – the financials of horse racing and then the casino,” German said. “Then they gave each individual county that showed up our own sheet based on our financial information (such as revenues and surcharge issued to the municipalities).”

German said WROTB officials addressed the health insurance for directors, use of promotional tickets and use of company vehicles – “stuff that has been rehashed on TV for a couple of years now.”

“From what I heard, and this is coming from the side of OTB, their explanations were adequate, I guess. They made sense,” he said. “They explained how and why they give out tickets. For example, when they gave away tickets to see Garth Brooks in concert, they said they saw a dramatic increase in bets and profitability on those two particular days. It brought people in.”

German said that most of the questions came from Hardwick and Erie County Deputy Comptroller Timothy Callan with a few posed by Oswego County Treasurer Kevin Gardner.

Wojtaszek said Hart explained that the $7.5 million paid by WROTB to purchase the hotel from its original investors (ADK Hospitality) was warranted. 

“David showed them that the price paid was fair based on the appraisal that was done and the numbers that we have been able to sustain at the hotel,” Wojtaszek said. “And revenues continue to increase.”

On the health insurance subject, Wojtaszek said the board of directors will be addressing that issue in the coming weeks with the goal of establishing “a comprehensive way to provide coverage for all of our employees.”

He also said that Moskal conducted an audit on the corporation's practices, made suggestions "and we are following those suggestions."

Wojtaszek noted that he will be continuing the dialogue with Hardwick’s office and will provide additional documents that Hardwick requested. He said that all 15 member counties plus the cities of Rochester and Buffalo were invited to today's meeting.

The letters sent by Hardwick to WROTB can be viewed by going to the Erie County Comptroller’s Office website – www4.erie.gov/comptroller/.

Developing an effective promotion and marketing strategy at Batavia Downs Gaming sounds like a challenging assignment. Marketing Director Ryan Hasenauer and his staff, however, have been equal to the task as revenues for the gaming/harness horse racing facility and hotel on Park Road continue to surge.

The Batavian sat down with Hasenauer (photo at top, pointing to "wall of fame" at the Batavia Downs clubhouse) to talk about his team’s efforts to increase the customer base at the entertainment venue operated by Western Regional Off-Track Betting Corp., a public benefit company that distributes a portion of earnings plus surcharge to its 17 member municipalities.

Hasenauer, 41, is a Rochester native who earned his bachelor’s degree in Sports Management and Master of Business Administration from Medaille College (now University) in Buffalo before taking marketing positions with a software company and tanning salon chain.

He joined the marketing department at Batavia Downs in 2007, serving as director of marketing since October 2010. He and his wife, Elise, and their 7-year-old son, Theo, live in Hamburg.

Q. What is the overarching strategy when it comes to promotions? Your board of directors just authorized an expenditure of $600,000 for promotional items for the year – that’s a huge amount of money.

A. You’ve got to spend money to make money – that’s like one of the oldest adages in the book. What we do here at Batavia Downs is we implement two types of strategy – whether it’s horse racing, gaming, for the restaurants, the hotel. All those things basically work together as amenities for each other to basically accomplish two goals. One, attract new people to the facility and two, retain the people that we already have that enjoy coming here. And of course, if you're new, then you become an existing person. So, now I'm working hard to maintain your loyalty.

Q. It seems as though it is a very competitive industry?

A. The gaming landscape in Western New York is quite saturated. You've got one just south of Rochester, you've got one between Rochester and Syracuse, you've got several pinpointed around the Syracuse area and towards Utica, you've got one in Buffalo, we've got one in the Falls, you got one down to Alleghany and even got a few across the way just across the border into Canada now that Canada's opened up again. So, we have to be smart about our strategies because we are one of the smallest gaming facilities in New York State.

Echoing what Henry (Wojtaszek, WROTB president) has said many times, we try to see ourselves as the “Cheers” of casinos – we know your name. You can be a big fish in a small pond here. When you go to some of these other larger facilities, you're just a number to them. To reap some of the things you might want to get from a gaming facility, you have to be a very, very big player in those places to be even considered to get invites for a dinner tickets to a show on site or to a game, like the Buffalo Bills or whatever. Whereas here, we feel like we have a better relationship with our players. We know their names, we know their likes, their dislikes and you can still have access to some of those great things.

Q. What are some of the promotions that Batavia Downs offers?

A. If you're in the email club, for some of the concerts, you got an email for free tickets to our shows outside for our drawings on Wednesday nights. And on Friday nights. And coming in October, it'll be Tuesdays and Thursday nights. You can win tickets, whether you're a great player or not a great player. You can win tickets to see the Buffalo hockey team to see the Buffalo football team or the Rochester hockey team. The other places aren't doing drawings with their tickets; they're holding them back and only giving them to certain people. And while we do honor and give some of our higher-end players tickets, everyone has a chance with these drawings.

One of the other great things about doing that is that it drives traffic to the facility. It makes the facility busy because you’re here trying to win tickets to this real big country show that's coming to the facility. You know, when we gave away Garth Brooks tickets, this place was nuts. We gave away two pairs of Garth Brooks tickets on the floor. It was crazy here that night; people were excited to win those tickets. And they went to players that randomly were chosen in the game, which is exciting.

Q. Are you also in charge of lining up events such as dinners, fundraisers or weddings?

A. We have an amazing event staff headed up by Tory (Thompson) and we work together so much it’s like the other side of my brain. And Tory feels the same way about marketing here. People wanting an event here such as a fundraiser or big dinner are going to deal with Tory and she’s going to do right by you.

And we will work with you to help promote your event. I don't know many places that will literally say we will help you promote the event on our Facebook page, with ads in the local media. We take an extra step in making sure that if your event is a public event, we want you to succeed because what do we want? We want people here. It’s only smart for us to that.

Q. What about the concerts in the summer? Who coordinates that?

A. Things like the Vodka (& Gin) Fest, the Polka Fest, the Kentucky Derby party, all the concerts – those are things that the marketing team handles. The concerts are a total team effort, including the officers, where we get together to decide who's coming and what's going to go on, and what dates are they going to select?

That’s another thing that helps not only drive traffic to the facility, but provides entertainment for the people in Batavia and the surrounding areas. I remember, we had Three Dog Night come here and there was probably 6,000 to 7,000 people …singing along to all those old favorites.

Q. You’ve done a lot of renovation to the (racing) clubhouse.  What has been done there and how are you utilizing it?

A. So, the interesting thing about the clubhouse is that this place was built in 1940s; we opened on Sept. 20, 1940.  At that time, the clubhouse was like the crown jewel of this place, and over the years, it was a great place for people to come and watch the races.

There’s no mistake about it that horse racing is not as popular as it once was. We all get that; we understand that. There are not a lot of places across Western New York, first of all, but certainly across the United States that are actively trying to put money into horse racing spaces where people can enjoy watching horse racing. We put in money into that clubhouse. We put the “wall of fame” up there -- our history, from the 1940s all the way through present day and you could walk up and see it anytime you want.

We raised up the bar from the ground floor to beyond that level and made it so was a more welcoming experience for those who have movement disabilities. That was one thing that many people like to mention was that the buffet was on the top and you had to traverse those stairs. Now the buffet’s on the ground level. And if you have mobility issues, you don't have to worry about the stairs anymore. You go right to the buffet and find a seat where there's no going upstairs and you still have a seat on the window. You still have a great seat to see the horse racing.

Q. Judging by recent events in the clubhouse not related to horse racing, that must be a new wrinkle to your marketing strategy?

A. Because that clubhouse is only open, let's say between 50 and 70 days a year for horse racing, what are we going to do the other 300 days plus? While we do comedy shows there, we also utilize that space for nonpublic events. If somebody needs to utilize that space for a meeting, it’s available. We had Chamber (of Commerce) After Dark and the Zonta Club’s basket raffle. So again, utilizing the spaces that we have here to allow people to have meetings. We had a large meeting inside Park Place and events are scheduled throughout the week, not just on weekends.

Q. On the subject of horse racing, how much has that industry declined since its heyday? And how do you accommodate patrons that follow and wager on horse racing? Are they getting the short end of the stick, so to speak?

A. On the first question, I would have to take a look at the numbers to give you an accurate number. I know that during COVID, horse racing was one of the only things going on. We had that kind of artificial spike that happened in 2020 and in parts of 2021 where it was like, “Well, I can't go anywhere, but they're doing virtual horse racing someplace, I can make a wager on Batavia bets and I can do those things.”

I think what we are doing here at Batavia Downs to make sure that the horse players know that they're not forgotten about is making sure that they still have spaces to conduct that type of entertainment. Putting money in the clubhouse, making sure that that the ITW (Intertrack Wagering) is upstairs across the clubhouse on the second floor here at Batavia Downs. That space was put in when the gaming floor went downstairs, That's a very nice place for people to watch. There's nice chairs, there's ample space, there's vending machines nearby or if you want to go eat, you just go down the elevator, and there’s Fortune’s Restaurant.

(Hasenauer said Homestretch Grill, a smaller sandwich/pizza shop on the first floor is being remodeled and not open yet).

Q. So do you have any specials for the horse players because they're maybe not spending a lot of money on the gaming floor?

A. We’ve come to an agreement with the horsemen’s association to add 15 racing dates in January and February of next year, with racing on Wednesdays and Saturdays and some select Fridays thrown in there as well. We’re going to work to make sure the Homestretch Grill is open to satisfy those patrons and making sure they’re in a clean, comfortable environment.

Promotions include our magnet schedules, T-shirt toss after each race where the winning driver throws T-shirts onto the track apron for those in attendance. Free parking and admission, blanket giveaways. And we’re working with Don (Hoover, director of live racing) on things to make sure that people understand we’re not forgetting about horse racing. A lot of other casinos with racetracks have forgotten about horse racing.

You come here and buy a program, and if you go and earn a point on the gaming floor, we'll give you $5 on the gaming floor. And the program costs two bucks. So, if you're going to gamble anyway on the gaming floor, come and buy a program, earn your point, and then you've got a little bit of money for the gaming floor, too. We're doing things that are tying our racing and our gaming together. That's not something you're seeing at a lot of other places.

The renovated bar at the Batavia Downs Gaming clubhouse. Photos by Mike Pettinella.

Western Regional Off-Track Betting Corp. directors this morning approved the creation of a director of Information Technology position at the Park Road entertainment venue.

The board, at its monthly meeting, passed a pair of resolutions concerning IT – the first to establish the department and a director and the second to appoint Jeff Magee of Rochester to the director post.

Magee, who has served as an IT consultant for the corporation, will receive an annual salary of $99,000.

“Jeff’s actually been affiliated with this company for about 30 years,” said WROTB President and CEO Henry Wojtaszek. “So, he is someone who we utilized on an outside basis to consult with and he’s a specialist in the area.”

Wojtaszek said the board decided to replace an IT employee who left the company with Magee, making him a full-time department head.

“It’s almost a neutral budget item because what we're paying Jeff equals what we were already paying him previously as a consultant together with the salary of the gentleman who we're not replacing,” he explained.

Magee may have to fulfill his duties in a makeshift work area for a little while due to the fact that a pipe burst on Sept. 12 and caused serious flooding to the upstairs administration area and also to the gaming floor downstairs.

The board grant permission for Wojtaszek and his staff to make necessary repairs to the damaged floors and furnishings under an “emergency declaration” – without passing a formal resolution at this time.

“We’ll address this and then we’ll bring all the things together (to the board) and they’ll approve everything,” Wojtaszek said, adding that all work will be done “in accordance with our bidding procedures.”

In another personnel matter, the board voted to discontinue providing cell phones to employees, opting instead to authorize a monthly stipend to those employees needing to use a cell phone for business purposes.

The Park Road Reconstruction Project has entered the homestretch and Batavia Downs Gaming officials couldn’t be more pleased.

That’s the word from Henry Wojtaszek, president and chief executive officer of Western Regional Off-Track Betting Corp., and the public benefit company’s board at their meeting this morning.

“It's probably 80 percent complete,” Wojtaszek said. “We expect substantial completion by October 17^th and hopefully we will have two-way traffic on the street (again) in just two to three weeks.”

Edward Morgan, chair of the Batavia Downs Operations Committee, reported that Nov. 30 is the “targeted” completion date.

He said that trees purchased by WROTB are scheduled to be delivered tomorrow – and will take a week to install – and light poles (also purchased by WROTB) will be delivered next week and installed during the week of Oct. 3.

Morgan also said that the facility will feature two valet parking sites – the current one at the south end and a new one at the main entrance “to accommodate those (customers) staying at the Hotel (at Batavia Downs).

Wojtaszek said installation of the trees and streetlights will be handled by CATCO, the project’s primary contractor, and subcontractors.

“We're excited about the possibility of the completion by the second week in October and we look forward to a completed, beautiful project,” he said.

When asked by The Batavian about parking at the lot of the former Kmart building across the street, he said WROTB’s lease with Benderson Development, owner of the property, has expired and that anyone parking there is doing so “at their own risk.”

However, he did say that there is adequate parking for the events at Batavia Downs, and that he could foresee another lease agreement with Benderson should the need arise for concerts next summer.

On another front, the board extended its suite license with Pegula Sports & Entertainment for the 2022-23 Buffalo Bills football season at Highmark Stadium in Orchard Park, and a similar agreement with Rochester Arena LLC for the 2022-23 and 2023-24 Rochester Americans hockey seasons at the Blue Cross Arena.

Both contracts were paused in 2020-21 due to the COVID-19 pandemic, prompting the passage of a pair of resolutions to extend them. The cost with Pegula Sports is $103,200 and the cost with Rochester Arena is $37,150 for this season and $38,250 for 2023-24.

Wojtaszek said ticket distribution for the suites are handled through the WROTB marketing department “in a very professional, promotional way.”

“It'll be a combination of tickets being given away in a drawing on the (gaming) floor, which improves the attendance on our floor and improves foot traffic throughout the building, and then through the host department,” he said. “They’ll find good players and make sure that they offer them to come in and enjoy the experience at a Bills’ game (or Amerks’ game).”

In a related move, the board approved an annual expenditure of up to $610,000 for various promotional items from Mark-It-Smart, Inc., based in Santa Ana, Calif. Items are purchased on a per-event basis as part of a “continuity program,” Wojtaszek said, and include luggage, cookware, purses, barbecue items, camping equipment, glassware and small appliances.

In other action, the board approved the following resolutions:

• Contracts with three Batavia-based companies for a telescopic boom lift, marketing mailers and electrical parts and supplies.

Directors authorized payment of $147,000 to Skyworks, the lowest bidder, for a telescopic boom lift, ending the recent practice of leasing the equipment.

“Now’s the time to take that extra step and purchase it and make it cost-effective for the company,” Wojtaszek said. “It's a safety issue. We have a lot of decent sized projects here, including window washing and construction. It was put into the capital plan, and it was in the budget for this year. The board thought it was prudent to go ahead and purchase it, and I agree.”

The board accepted a bid of $115,000 from Applied Business Systems to send out marketing mailers to patrons and potential patrons over the next year, with an option for WROTB to extend the pact for an additional year.

An agreement to spend up to $25,000 with Falcone Electric for electrical parts and supplies was approved through the end of the year.

• A five-year extension of a contract with IK Systems, Inc., of Victor, at a cost not to exceed $68,444 to provide maintenance and testing services for the facility’s surveillance system.

Wojtaszek said he has been “impressed” with IK’s performance.

“I actually supervise the surveillance department here on site and I interact with them (IK Systems) very often. They are very timely and they're very efficient, So, that’s a five-year contract, sort of at a reduced price because we did it for an extended period of time.”

• Electric and natural gas contracts with Marathon Power LLC and NOCO Gas & Electric, respectively, through Oct. 31, 2024. Both companies submitted low bids, with Marathon agreeing to supply electric at .0645 per kilowatt hour and NOCO agreeing to supply natural gas at 0.675 per centum cubic feet.

Western Regional Off-Track Betting Corp. leaders are taking steps to address the company health insurance policy that has been a media hot button item in recent months.

The corporation’s board of directors this morning approved a resolution to spend up to $25,000 to extend a contract with the Connors LLP law firm of Buffalo, with the goal of reaching a “global solution" to the health insurance matter.

“I’ve been instructed (by the board) to come back in September with a plan to globally address the healthcare issue for the whole company,” WROTB President/Chief Executive Officer Henry Wojtaszek said following the meeting at the Park Road facility. “We’re working on a nice, fair global solution to whatever healthcare (is permissible) and that includes the board and entire corporation.”

Wojtaszek said lawyers are negotiating with the New York State Attorney General’s office.

“He’s (Terry Connors) prepared a memo that he’s provided to the attorney general and he’s provided advice to our board,” he said. “Talks with the attorney general are continuing.”

Published reports about the “gold plated” health insurance plan given to board members have prompted protests from Western New York politicians and government officials – present and past. Until June of last year, all board members (and three retired ones) were receiving health insurance plans that cost the public benefit company an average of more than $10,000 per year.

The board, at its June 2021 meeting, voted unanimously to eliminate company-sponsored health insurance benefits for directors appointed on or after July 1, 2021. So, as of today, the majority of the board members are still receiving fully-paid health insurance.

In other developments, the board:

• Approved the purchase of $50,000 worth of $20 gift cards from Tops Friendly Markets to be used toward a promotion for the Hotel at Batavia Downs for eligible hotel stays through the end of the year.

• Announced that $61,498 in surcharges generated in July will be distributed to member municipalities. Also, it was reported that Batavia Bets’ revenue is down 16 percent this month as compared to last August, and 17 percent for the year as compared to this time in 2021.

• Learned that management is looking to reduce the number of summer concerts from 11 to nine next year in an effort to attract top name bands and, hopefully, eliminate tribute bands. “The purpose is to possibly spend a little bit more money to get bigger bands, for lack of a better term, in order to attract bigger crowds,” Wojtaszek said. When asked if security was an issue this year, he said the combination of Genesee County Sheriff’s deputies, Batavia Police Department officers and the Downs’ security staff handled things well.

• Reported that the Park Road Reconstruction Project is moving along, noting that crews were laying the binder on the east side of the road and that sidewalks are being put in on both sides. “We expect the road to be open after Labor Day and we expect substantial completion -- 97-98 percent of the project -- done by September 20^th,” Wojtaszek said. (See photo below).

Former State Sen. George Maziarz has ended his lawsuit against the Western Regional Off-Track Betting Corp.

On Monday of this week, a “Notice of CPLR 3217 Voluntary Discontinuance” was filed in the Erie County Supreme Court, with pertinent wording as follows:

Please take notice that the Complaint in this case is voluntarily dismissed pursuant to CPLR 3217, without prejudice.

According to New York State Law, CPLR 3217 (a) CPLR 3217 (a) allows a brief window for a plaintiff to withdraw, or voluntarily discontinue, an action, without requiring either a stipulation of any appearing parties or leave of court. Plaintiff needs to serve a notice of discontinuance on all parties before a responsive pleading is served or within twenty days of the service of the complaint.

Contacted by email today through a representative of his, Maziarz replied, “My lawsuit against Western Regional Off-Track Betting has been voluntarily withdrawn at the request of a law enforcement agency.” He had no further comment.

In May, Maziarz, who represented Niagara County in the State Senate from 1995-2014, took legal action against WROTB and its leadership, following up on a state Comptroller’s Office report that officials of the public benefit company misused tickets to sporting events and concerts and provided gold-plated health insurance policies to appointed board members.

Maziarz was suing to have funds returned to WROTB’s 17 member municipalities, including Genesee County.

Attorneys for WROTB proceeded to file a motion to dismiss prior to a ruling. Earlier this month, the state Supreme Court Appellate Division, Fourth Judicial Department, upheld a March 25, 2021 decision by (then) Genesee County Supreme Court Justice Charles N. Zambito that Maziarz was not entitled to attorney’s fees and litigation costs incurred during a Freedom of Information Law proceeding to gain records from WROTB.

The Batavian reached out this afternoon to WROTB President/CEO Henry Wojtaszek for his reaction to the lawsuit’s dismissal.

“As we said when it was filed, this was a frivolous lawsuit and a publicity stunt. We were very confident that it would be dismissed, and it has been,” he said. “We are very happy that Batavia Downs continues to generate increased revenues and that we are able with to return that money to our member municipalities at a record level.”

Wojtaszek added that he and the WROTB board view the dismissal “as an attempt (by Maziarz) to limit his embarrassment in regard to the frivolous lawsuit.”

Maziarz was represented by Advocates for Justice, New York City, while WROTB was represented by Hodgson Russ LLP of Buffalo.

File photo of George Maziarz taken by Howard Owens.

Previously: WROTB hires Buffalo law firm to oppose suit filed by Maziarz; Park Road traffic patterns set to change

Previously: Former state senator with his own corruption history files lawsuit against Batavia Downs alleging corruption

Ricky Palermo couldn’t have been more appreciative this morning as he accepted a $20,000 check from Henry Wojtaszek, president and chief executive officer of Western Regional Off-Track Betting Corp., to support the Ricky Palermo Foundation for spinal injury research.

The funds represent ticket sales, food vendor and chair rental fees from the "Bruce in the USA" concert that took place on June 10 at Batavia Downs Gaming on Park Road.

Palermo credited Ryan Hasenauer and the marketing department staff at WROTB for making the concert happen and the community for getting behind it.

“We've never done anything this big before,” he said in front of a small gathering in the casino lobby. “I can’t say enough how much we appreciate it. Every time we had a question either Henry or Ryan or one of the girls would get back to me. It made life a lot easier.”

He said that the foundation has raised more than $1.7 million over the past 26 years.

“It’s kind of amazing when you think about that,” he said. “We couldn't do it without the help of everybody -- everybody in our community.”

Palermo noted that people who attended the concert have reached out to him, looking for answers in regard to getting help for a spinal injury.

Contributions to the Ricky Palermo Foundation are distributed to four entities, Palermo said. Those are United Memorial Medical Center in Batavia, Strong Memorial Hospital in Rochester, the bicycle program for spinal injured people at the Genesee Area Family YMCA and the Miami Project to Cure Paralysis.

“A small chunk goes to Strong Memorial because they took care of me when I first got hurt, so I want to make sure to remember them,” he said.

Wojtaszek said the Downs plans to host another event next year to support the Ricky Palermo Foundation.

The foundation’s 26^th annual golf tournament is scheduled for Aug. 6 at Terry Hills Golf Course on Clinton Street Road. Palermo said it will be a “golf only” event with a take-home chicken and pork barbecue dinner.

Photo: Ricky Palermo accepts $20,000 check from Henry Wojtaszek this morning at Batavia Downs Gaming. Photo by Mike Pettinella.

Batavia Downs Gaming is on its way to another year of record earnings, the chief financial officer for Western Regional Off-Track Betting Corp. said this morning.

“Surcharge and earnings distributions are up 175 percent this year compared to the same point in 2021 and we’re about $500,000 away from 2021’s earnings distribution of $4.9 million – which was the best ever for the corporation,” said CFO Jacquelyne Leach, following today’s board of directors meeting at the Park Road facility.

Year-to-date earnings and surcharge for 2022 are at $4,713,508, broken down as follows: $4,340,130 in earnings and $373,378 in surcharge, Leach reported. Compared to last year at this time, the total earnings and surcharge distributions were $1,716,870.

“At this pace, this will be the highest earnings year in the corporation’s history,” Leach said.

She said that the public benefit company will be distributing $2,606,704 in second quarter earnings and June surcharge to its 17 member municipalities next week.

Genesee County will receive $53,903 from the second quarter earnings pool and $951 from the surcharge pool, bringing its year-to-date earnings and surcharge distribution to $99,251. For all of 2021, Genesee County received $36,190 in surcharge and earnings distributions.

Resolutions passed by the board during its meeting include:

• Finalization of an agreement with the Western New York Harness Horsemen’s Association to add 15 racing dates in January and February 2023 to the current schedule. WNYHHA has agreed to pay all expenses associated with conducting the additional dates – expected to be around $300,000, according to WROTB President Henry Wojtaszek. The dates will be announced after approval of the contract by the New York State Gaming Commission.

• Authorizing WROTB to pay $140,000 for the Town of Batavia, through general contractor CATCO, to install a new 12-inch sewer line during the Park Road Reconstruction Project. Previously, the Batavia Town Board voted in favor of the agreement, which calls for WROTB and Genesee Park Place Associates to share the cost of about 700 linear feet of sewer pipe.

• A contract with Audio Images Sound & Lighting of Batavia for $150,000 to set up the stage, concert lighting and associated equipment for the Rockin’ The Downs Concert Series this summer. Wojtaszek acknowledged that the contract should have been presented to the board sooner, since the concert series is halfway done, but said the amount was negotiated prior to the start of the series.

• Expenditures totaling up to $130,000 for food and beverages at three Western New York venues during events sponsored by WROTB for customers. The amounts are $75,000 at Key Bank Center in Buffalo (Buffalo Sabres, Buffalo Bandits, concerts); $30,000 at Blue Cross Arena in Rochester, and $25,000 at Highmark Stadium in Orchard Park (Buffalo Bills, concerts).

• Agreements with the WNYHHA to evenly split the cost of the purchase of a new 621 G Z Bar Case Loader from Monroe Tractor and a new T450 Track Loader from Clark Equipment Co., which will be used to maintain the harness track. The first piece of equipment costs $186,412.59 and the second one costs $54,786.63.

• A change order of the contract with Suburban Electric, Inc., in the amount of $22,709.36 for electric work associated with the lighting of the parking lot adjacent to the new warehouse and cold storage facility on the ground’s south end. Wojtaszek said the total cost of the project is around $1 million and it is near completion.

• Acceptance of a purchase offer of no less than $450,000 from Laur Properties, LLC, for the OTB branch that has been for sale on Military Road in Niagara Falls.

A recent setback in an appellate court will not prevent former State Sen. George Maziarz from continuing with a lawsuit against Western Regional Off-Track Betting Corp. for what he terms “improper practices.”

Late last week, the state Supreme Court Appellate Division, Fourth Judicial Department, upheld a March 25, 2021 ruling by (then) Genesee County Supreme Court Justice Charles N. Zambito that Maziarz was not entitled to attorney’s fees and litigation costs incurred during a Freedom of Information Law proceeding to gain records from WROTB.

Responding to an email from The Batavian on Thursday, Maziarz said the judgment denying legal fees “stems from the Freedom of Information lawsuit we had to file against Western Regional Off-Track Betting a few years ago.”

“They want to operate in secrecy, but the courts forced WROTB to turn over the information we requested,” he said. ““What matters is that the information we received exposed apparent improper practices by WROTB (and) those facts laid the foundation of our recently-filed lawsuit against WROTB to recoup money spent on those practices for the citizens in the Western Region.”

In its ruling, the appeals court – citing case law -- “affirmed” Zambito’s order on the Article 78 issue, writing, “As relevant here, a court may assess reasonable attorney’s fees and other litigation costs against an agency in a FOIL proceeding where the petitioner 'has substantially prevailed, and . . . the agency failed to respond to a request or appeal within the statutory time.'”

Furthermore, the court stated that “even if the party meets those requirements, the award of attorney’s fees and litigation costs remains discretionary with the court. We agree with petitioner that respondent failed to respond to petitioner’s FOIL appeal within the statutory time and that Executive Order (A. Cuomo) No. 202.8 (9 NYCRR 8.202.8) did not toll respondent’s statutory time within which to respond.”

Nevertheless, the court concluded that the Genesee County Supreme Court “did not abuse its discretion in denying petitioner’s request for attorneys’ fees and litigation costs inasmuch as respondent’s delay was caused by the ongoing COVID-19 pandemic.”

Maziarz’s suit contends that WROTB – a public benefit company -- has, in effect, spent funds that should have gone to its 17 member municipalities by offering high-priced health insurance to its directors and improperly distributing sporting event tickets.

WROTB President Henry Wojtaszek on Thursday reiterated that the corporation’s attorneys have filed a motion to dismiss, adding that he is confident that nothing will come of Maziarz’s action.

“We prevailed at the Appellate Division, which is a telling sign that the outcome will be the same with the lawsuit,” he said.

Previously: Former state senator with his own corruption history files lawsuit against Batavia Downs alleging corruption

Previously: WROTB hires Buffalo law firm to oppose suit filed by Maziarz; Park Road traffic patterns set to change

Patrons of Batavia Downs Gaming wagered close to $90 million during the month of May, according to the chief financial officer for Western Regional Off-Track Betting Corp.

“Credits played in May came to $88.8 million with 7.2 percent of that – or $6.4 million – slotted into the “VGM (video game machine) net win” category,” Jacquelyne Leach said today. “Conceptually, about 8 percent of the total amount wagered makes up the net win.”

Leach reported that year to date “net win” stands at $31.6 million – a staggering number – but the public benefit company keeps a bit more than half of that amount.

Forty-nine percent of the net win goes to the New York State Gaming Commission, Leach explained, with 90 percent of that earmarked for education and 10 percent staying with the commission, which oversees gaming operations.

That leaves 51 percent, which stays with WROTB, Leach said, and is divided as follows:

• 37 percent -- Batavia Downs vendor fee, which includes a 10 percent distribution for harness horse racing purse payments, the Western New York Harness Horsemen’s Association and breeders’ payments and 27 percent for operating expenses, such as payroll, utilities, etc.

• 10 percent -- Marketing allowance to promote Batavia Downs Gaming and horse racing.

• 4 percent -- Capital awards fund for capital improvements, debt service, etc.

“After all of the obligations are met and all operating expenses are paid, then the rest is distributed to our member municipalities,” Leach said, adding that the corporation’s surcharge distribution for May was $88,459 and that $315,000 has been generated for the municipalities since Jan. 1.

WROTB’s geographical area is comprised of 18 counties, 15 of which participate as members of the corporation, and the cities of Buffalo and Rochester.

In 2021, WROTB distributed $123,409 to Genesee County, $85,235 to Orleans County and $84,619 to Wyoming County. All told, distributions to all member municipalities for last year came to $5,793,184.

The law firm representing Western Regional Off-Track Betting Corp. is preparing to file a motion to dismiss a suit filed by a former state senator alleging that the public benefit company illegally offered health insurance to its directors and improperly distributed sporting event tickets.

That’s the word from WROTB President Henry Wojtaszek this morning following the monthly board of directors meeting at the Park Road facility.

“That’s correct,” Wojtaszek responded when asked by The Batavian if filing a motion to dismiss the lawsuit filed by George Maziarz was going to be the first order of business by attorneys for Hodgson Russ LLP of Buffalo. “We don't believe it's brought properly, either substantively or procedurally. So, we'll make a motion to dismiss right off the bat.”

In mid-May, Maziarz, a state senator from Niagara County for 10 years through 2014, met with local media across the street from Batavia Downs Gaming to provide details of his suit – action that focuses on previously investigated accusations of misuse of sporting event and concert tickets and the legality of “gold-plated” health insurance given to appointed board members.

An audit by the New York State Comptroller’s office criticized WROTB over the handling of the tickets and also use of a company vehicle stemming from 2018-19, but Wojtaszek said those issues have been addressed and corrected.

Wojtaszek contends that Maziarz is waging a personal vendetta against him and WROTB in retaliation of Maziarz’s conviction of public corruption while in office.

The corporation’s board of directors this morning approved a contract to pay Hodgson Russ up to $25,000 to fight the suit.

Hodgson Russ also is representing WROTB in a $14.5 million wrongful termination lawsuit filed last August by Michael Nolan, the former chief operating officer at WROTB who was let go of his position in December 2020.

“We are just waiting for the judge to rule on the motions that are before him right now,” Wojtaszek said today. “We expect that (to happen) in three to six months.”

In other developments, Wojtaszek reported:

• The timetable of the Park Road Reconstruction Project “is coming along very well – we still anticipate them completing the project sometime in late September, early October.”

He said the traffic pattern may be changing soon, adding that Ryan Hasenauer, director of Marketing, will be sure to let the public know in advance.

“We met with the contractor, CATCO, yesterday and with the Town of Batavia, and there may be some effort to open up to two-way traffic at some points of Park Road to alleviate some of the traffic jams and also to help facilitate moving the project along and completing it in a more timely manner,” he said.

Wojtaszek said officials are looking at opening the road for two-way traffic starting at the intersection of Richmond Avenue (near Alex’s Place) and north toward Veterans Memorial Drive in the next couple weeks.

“The town needs to check with all the people involved, including the emergency services and the DOT (Department of Transportation) to make sure that can be accomplished. But again, we like to move to that next phase where maybe we reopened two-way traffic and where a different part of the road is closed off entirely.”

• The “odds are good” that the track’s harness horse racing season will be extended into January and February of 2023 as negotiations with the Western New York Harness Horsemen’s Association are ongoing.

“We have a good relationship with the horsemen in Western New York,” he said. “They presented us with a very reasonable plan to have the racing occur here at Batavia Downs. So, the board is inclined to have the racing in January and February and we just have to work out the details of the contract.”

The 2022 racing season is set to begin on July 20 and originally was scheduled to run through Dec. 17 (with racing two or three nights per week). Previously, Wojtaszek indicated that the WNYHHA would reimburse Batavia Downs for the cost of operating in the first two months of next year.

• WROTB is looking to streamline its Off-Track Betting branch locations, likely moving from the current 10 throughout the region to maybe seven or eight. Along those lines, the corporation is entertaining a purchase offer for Military Road branch in Niagara Falls and will be putting the West Ridge Road, Rochester, branch on the market soon.

“We have a lot of EZ Bets now and we have our machinery at different bars and restaurants that help alleviate the need for full-scale branches,” Wojtaszek said.

• The corporation is considering hiring an insurance consultant in the wake of rising premiums.

The board approved a resolution to pay $1,089,824 to Garland Insurance & Financial Services for property and casualty liability insurance for one year, through June 1, 2023. Wojtaszek said the premium increase by about 7 percent from the previous year.

“The insurance industry has gone up, overall. We know that it’s a very tough environment, but the increase was substantial,” he said. “So, yes, we’d like to have someone else look at it try to help us with the insurance.”

Previously: Former state senator with his own corruption history files lawsuit against Batavia Downs alleging corruption

Previously: WROTB's Genesee County director sees 'no basis' for Nolan's lawsuit vs. corporation, president, board chair