New York State Court of Claims

New York State Court of Claims

GORDON v. THE STATE OF NEW YORK, #2000-015-110, Claim No. 102689, Motion Nos. M-62172, CM-62487


Synopsis


Claimant alleges he purchased 78 "Win 4" lottery tickets in 1996 which State Division of Lottery refused payment on prompting this claim. Court dismissed negligence cause of action in claim filed July 5, 2000 as untimely pursuant to Court of Claims Act § 10(3) but refused t dismiss cause of action for breach of contract. Late claim relief denied as moot in light of non-dismissal of contract cause of action.

Case Information

UID:
2000-015-110
Claimant(s):
MILTON GORDON
Claimant short name:
GORDON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102689
Motion number(s):
M-62172
Cross-motion number(s):
CM-62487
Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Thomas, Wareham & RichardsBy: Jomo S. Thomas, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael C. Rizzo, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
December 15, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant's motion for summary judgment pursuant to CPLR 3212 and Court of Claims Act § § 10 and 11 dismissing the claim for lack of jurisdiction is granted as to the negligence cause of action asserted therein and denied as to the cause of action for breach of contract. Claimant's cross-motion for late claim relief pursuant to Court of Claims Act § 10 (6) is denied for the reasons set forth below. This claim, filed and served on July 5, 2000 and re-served on July 20, 2000, seeks money damages stemming from the claimant's alleged purchase of seventy-eight winning "Win 4" lottery tickets on December 7, 1996 at Ker-Mar Wines and Liquors located at 828 Rogers Avenue, Brooklyn, New York. Paragraph 3 of the claim asserts the following:
3. The time and place and manner in which the claim arose: The incident arose on December 7, 1996, at approximately 3:00 p.m. at Ker-Mar Wines and Liquors located at 828 Rogers Avenue, Brooklyn, New York, when the Claimant purchased "78" WIN 4" lottery tickets from Ker-Mar Wines and Liquors who was acting as agent of New York State Lottery, did sell the same to the Claimant. [sic] That the Claimant by way of the winning numbers "6167" produced by New York State Lottery, was a winner for the daily drawing held for participants who purchased tickets for December 7, 1996. That after informing the New York State Lottery of the same, its agents, servants, licensees, contractors, subcontractors, employees and other affiliates agencies and departments and those acting under the management, maintenance and control of the New York State Lottery refused to pay the Claimant the $390,000.00 due him per his "78" winning tickets purchased from Ker-Mar Wines and Liquors on the 7th day of December 1996.
The claim seeks $3,000,000 in damages upon causes of action sounding in negligence and breach of contract. The claimant first instituted an action in Supreme Court, Kings County, on March 27, 2000. The instant action was commenced by the filing of the claim on July 5, 2000 followed by service upon the Attorney General by certified mail, return receipt requested, on July 20, 2000. The Supreme Court action was discontinued on July 19, 2000.

The defendant has moved to dismiss the claim on two grounds, only one of which will be treated herein. Although the defendant initially argued that the claim should be dismissed because it was served upon the Attorney General by ordinary mail on July 5, 2000, defense counsel withdrew this portion of the motion when he stated at paragraph 15 of his affidavit in support dated October 6, 2000 that "a duplicate claim was served by certified mail on July 20, 2000."

The remainder of the defendant's summary judgment motion is addressed to the claim's alleged untimeliness pursuant to Court of Claims Act § § 10 and 11. Defendant's motion is supported by the affirmation of an Assistant Attorney General and by copies of the pleadings, including a verified claim and verified answer. The Attorney General's affirmation in support of the motion dated August 8, 2000 states as follows:
6. With respect to the portion of the claim sounding in negligence, said claim is untimely as, pursuant to Sections 10 (3) and 11 of the Court of Claims Act, a claimant alleging negligence is required to file his claim and/or a notice of intention within 90 days of the accrual of the claim. Failure of the claimant to do so results in this Court lacking subject matter jurisdiction over the claim and personal jurisdiction over the defendant, New York State Lottery.

7. With respect to the portion of the claim sounding in breach of contract, pursuant to Sections 10 (4) and (11) of the Court of Claims Act, the claimant is required to file his claim and/or a notice of intention within six months of the accrual of the claim. The claimant's failure to do so results in this Court lacking subject matter jurisdiction over the claim and personal jurisdiction over the defendant.
With regard to the claimant's negligence cause of action, the defendant has complied with the requirement contained in Court of Claims Act § 11 (c) that any defense based upon a failure to comply with the time limitations contained in section 10 of the Act be set forth with particularity in either the answer or a pre-answer motion to dismiss.

A cause of action for negligence against the State Lottery accrues upon a refusal to honor a request for payment (Stern v State of New York, 128 AD2d 926). In his affirmation in support of the cross-motion herein, claimant's counsel establishes the operative date as January 9, 1997, the date the Lottery affirmatively refused a request for payment. It is on this date that damages became ascertainable and, hence, the claimant's cause of action accrued. Having failed to comply with the requirements of Court of Claims Act § 10 (3) relative to the timely filing of a claim premised upon the negligence or unintentional tort of a State officer or employee, and the defense having been preserved in the answer, that portion of the claim which alleges negligence by the State in failing to pay monies allegedly due the claimant is dismissed.

While the defendant preserved its defense of untimeliness with regard to the alleged negligence of the State Lottery, a review of the answer reveals that no such defense is asserted therein relative to the claimant's breach of contract theory.

Although the defendant asserted in the sixth defense set forth in the answer that "the claim is untimely in that neither the claim nor a notice of intention was served within ninety (90) days of the accrual of the claim as required by Court of Claims Act § 10 (3) and 11", no such reference is made to the provisions of Court of Claims Act § 10(4) which requires the service and filing of a claim for breach of contract within six months of its accrual. In order that a pleading be sufficiently particular, it must set forth the material elements of the transaction or occurrence to be proved (Fowles v State of New York, 152 Misc 2d 837) and should "provide adequate and clear notice to any reasonable person that a defect is claimed to exist" (Sinacore v State of New York, 176 Misc 2d 1, 4). Where, as here, a claim sets forth separate causes of action subject to discrete time frames relative to the service and filing of a claim pursuant to Court of Claims Act § 10, the particularity requirement of section 11 (c) logically requires specific reference as to each in the answer in order that the defense be preserved. In the instant matter, the defendant failed to assert the defense of untimeliness as to the breach of contract cause of action subject to Court of Claims Act § 10 (4) and, as a result, the defense has been waived (Adebambo v State of New York, 181 Misc 2d 181).

The Court will now consider the claimant's cross-motion for late claim relief which is supported by the previous claim, verified by the claimant on June 26, 2000, and asserts causes of action for negligence and breach of contract.

Court of Claims Act § 10 (6) permits the late filing of a claim conditioned upon the making of an application for such relief within the applicable Statute of Limitations (Williams v State of New York, 235 AD2d 776). CPLR § 214 establishes a three year Statute of Limitations with respect to a cause of action for negligence. Having determined that the claimant's cause of action accrued on January 9, 1997, the application for late claim relief is untimely as having been made subsequent to the expiration of the applicable Statute of Limitations. The application is, therefore, denied as to the negligence cause of action set forth therein.

As a final matter, the application for late claim relief is also denied as moot as to the cause of action for breach of contract in light of this Court's denial of the defendant's motion to dismiss with respect to that cause of action contained in the original claim.



December 15, 2000
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion to dismiss dated August 8, 2000;
  2. Affidavit of Michael C. Rizzo sworn to August 8, 2000 with exhibits;
  3. Notice of cross-motion dated September 27, 2000;
  4. Affirmation of Jomo Sanga Thomas dated September 27, 2000 with exhibits.
  5. Affidavit of Michael C. Rizzo sworn to October 6, 2000.