What is the proper test of skill or chance in assessing what activity is gambling in the State of New York? According to noted NY gaming law expert Bennett Liebman, it is the so-called "predominance test" as outlined in this seminal legal article discussing the history of New York law on this issue.
Based on legislative history, case law, common sense, and the views of many commentators, it ought to be clear that the “dominating element” test for
gambling as established by People ex rel. Ellison v. Lavin remains valid law in New York State. It may have been modified by the “material element” language
added by § 225.00.1 of the Penal Law, but the gist of this change was to end the unpredictable mathematical rigor of the original “dominating element”
test and make the test more subjective. There was absolutely no intent to change the substantive law of gambling in New York State. In summary,
the law in New York governing whether a game or contest is a game of chance is much like Mark Twain’s famous quip about his death. “The reports of the death of the ‘dominating element’ test in New York have been greatly exaggerated.”
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