
    In the Matter of William C. MacMillen, Jr., Individually and as President of Horsemen’s Benevolent and Protective Association, New York Division, Appellant, v New York State Racing and Wagering Board, Respondent, and Jockeys’ Guild, Inc., Intervenor-Respondent.
    Argued March 24, 1983;
    decided April 28, 1983
    
      APPEARANCES OF COUNSEL
    
      Herman E. Cooper and Jonathan L. Sulds for appellant.
    
      Robert Abrams, Attorney-General {Theresa E. Wolinski, Peter H. Schiff and Henriette Frieder of counsel), for respondent.
    
      Christopher S. Rooney and Roger D. Smith for intervenor-respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Section 57 of the Workers’ Compensation Law mandates that every State or municipal official authorized to issue permits obtain proof of compensation insurance coverage for all “employees in a hazardous employment.” The New York State Racing and Wagering Board is a permit issuing agency, racing is a hazardous employment and the relationship between an owner and a jockey may be held to be that of employer-employee (Matter of Rice v Stoneham, 254 NY 531; Matter of Pierce v Bowen, 247 NY 305). Whether in fact a particular jockey is an employee or an independent contractor is, however, a matter determinable by the Workers’ Compensation Board only after an injury has occurred (see O’Rourke v Long, 41 NY2d 219). It follows that the New York State Racing and Wagering Board has the authority to condition issuance of an owner’s permit upon the provision of “compensation insurance coverage for jockeys who ride their horses in races at this state’s thoroughbred tracks.” The board’s declaratory ruling so stating is, therefore, neither unauthorized, nor arbitrary and capricious, nor inconsistent with the board’s rule 4006.3 (9 NYCRR).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg, Meyer and Simons concur.

Order affirmed, with costs, in a memorandum.  