
    Lillian Roberts, as Executive Director of District Council 37, American Federation of State, County and Municipal Employees, AFL-CIO, et al., Appellants, v David A. Paterson, as Governor of the State of New York, et al., Respondents.
    [923 NYS2d 326]
   Judgment, Supreme Court, New York County (Cynthia S. Kern, J.), entered January 19, 2011, denying plaintiffs’ motion for a preliminary injunction requiring defendants to fund health insurance benefits for retirees of the New York City Off-Track Betting Corporation (NYC OTB) pending determination of plaintiffs’ plenary action for the same relief, unanimously affirmed, without costs.

The City and the State are precluded by NY Constitution, article X, § 5, and Racing, Pari-Mutuel Wagering and Breeding Law § 614 from assuming the legal obligation to pay the NYC OTB retirees’ health insurance benefits. Thus, plaintiffs cannot show a probability of success on the merits or otherwise meet the “heightened standard” governing their application for a mandatory preliminary injunction (see Second on Second Café, Inc. v Hing Sing Trading, Inc., 66 AD3d 255, 264, 273 [2009]). Concur — Gonzalez, EJ., Tom, Friedman, Catterson and Richter, JJ. [Prior Case History: 2011 NY Slip Op 30096(U).]  