GORDON v. THE STATE OF NEW YORK, #2002-015-253, Claim No. 102689, Motion Nos.
Pro se claimant failed to submit proof in admissible form to create a question
of fact as to the Division of Lottery's alleged computer error. The defendant
offered business records demonstrating that all of claimant's Win 4 tickets
except one were purchased on the day subsequent to the date of his alleged
winning and the one purchased on that day was purchased too late to qualify for
that day's drawing. Claim dismissed on motion for summary judgment.
MILTON GORDON The caption of this claim was amended sua sponte by order of the Court dated October 24, 2000.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FRANCIS T. COLLINS
Milton Gordon, Pro Se
Honorable Eliot Spitzer, Attorney General
By: Michael C. Rizzo, EsquireAssistant Attorney General
May 20, 2002
See also (multicaptioned
By decision and order dated December 15, 2000 (filed December 20, 2000) the
Court dismissed as untimely that portion of the instant claim which was based
upon the alleged negligence of the New York State Department of Taxation and
Finance Division of the Lottery (the Lottery), but allowed claimant to proceed
on the remaining cause of action for breach of contract. The defendant
subsequently moved for summary judgment seeking dismissal of the breach of
contract cause of action but later withdrew its motion. The State again moved
for summary judgment. However, prior to the Court's consideration of the
State's summary judgment motion claimant's counsel (Alan Ross, P.C.) moved to
withdraw as claimant's attorney on the grounds of irreconcilable differences.
That motion was denied without prejudice by decision and order dated September
12, 2001 due to service irregularities. A subsequent motion by Alan Ross, P.C.
to withdraw as claimant's attorney was successfully pursued and such relief was
granted by decision and order dated December 17, 2001 (filed December 20, 2001).
That decision and order in relevant part provided that within 45 days of its
service upon him claimant was to either oppose the still pending summary
judgment motion on a pro se basis or inform the Court of the name and address of
his newly retained attorney. It further provided that additional time to
address the motion would be granted if requested by claimant's new attorney.
The withdrawing attorney filed proof of service of the December 17, 2001
decision and order upon the claimant with the Clerk of the Court asserting
personal service on December 31, 2001. Claimant never provided the name and
address of any subsequently retained attorney and now appears pro se. The State
moves to dismiss the claim on the grounds that it lacks merit and the State is
immune from liability by operation of the duly adopted regulations of the
Division of the Lottery.
The claim seeks to recover the sum of $390,000.00 as proceeds of 78 "Win 4"
lottery tickets allegedly purchased by claimant at approximately 3:00 p.m. on
December 7, 1996 at Ker-Mar Wines and Liquors located at 828 Rogers Avenue,
Brooklyn, New York. Claimant alleges that he provided proof of his purchase of
the 78 tickets bearing "Win 4" number 6167 to the Lottery but was refused
payment. His claim for damages based upon alleged personal injury stemming
from the Lottery's negligent denial of payment was, as noted above, previously
dismissed as untimely. The instant motion relates solely to the remaining
breach of contract cause of action.
The State's motion for summary judgment is supported by a copy of the
pleadings; the affidavit of Assistant Attorney General Michael C. Rizzo; the
affidavit of Jay Hemlock, an investigator with the Lottery's Security Unit,
photocopies of prize claim receipts identifying in coded fashion individual
ticket numbers and the date and place of purchase of each ticket submitted by
claimant to the Lottery for payment, copies of the tickets purchased by claimant
and photocopies of the Lottery's business records used to decipher and explain
the ticket codes.
The claimant opposed the State's motion and by notice of cross-motion dated
January 12, 2002 seeks summary judgment determining the State's liability as a
matter of law and setting the matter down for an inquest to determine damages.
Claimant's cross-motion is supported solely by the claimant's own affidavit in
which he reasserts the allegations set forth in his claim and argues without
evidentiary support that the tickets allegedly purchased by him on December 7,
1996 were misprinted for the "Win 4" drawing held on December 8, 1996 due to a
State computer error.
The Court's role on a motion for summary judgment is issue finding not issue
determination (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395;
Lui v Park Ridge at Terryville Assn., 196 AD2d 579). In order to grant
summary judgment, a Court must find that there are no material triable issues of
fact. "To obtain summary judgment it is necessary that the movant establish his
cause of action or defense 'sufficiently to warrant the court as a matter of law
in directing judgment' in his favor (CPLR 3212, subd [b]), and he must do so by
tender of evidentiary proof in admissible form" (Friends of Animals v
Associated Fur Mfrs., 46 NY2d 1065, 1067). Once the movant establishes his
or her prima facie entitlement to summary judgment, the burden shifts to the
opposing party to come forward with admissible proof establishing the existence
of a triable issue of fact (Leek v McGlone, 162 AD2d 504). Should the
moving party fail to make a prima facie showing of its entitlement to judgment
as a matter of law, the motion will be denied regardless of the sufficiency of
the opposing papers (Alvarez v Prospect Hosp., 68 NY2d 320).
The evidence offered by the State, largely composed of Division of the Lottery
business records, demonstrates that claimant purchased only one of the 78 "Win
4" tickets at Kei-Mar Wines and Liquors
location code is indicated thereon by the number 09470. Although the fifty cent
wager at Kei-Mar was made on December 7, 1996 the "Win 4" ticket purchase
occurred at 20:11:16 or 8:11 p.m. The records demonstrate further that wagering
on the December 7, 1996 "Win 4" drawing was closed at 19:30:09 or 7:30 p.m.
Defendant alleges that claimant's "Win 4" ticket purchased at 8:11 p.m. on
December 7, 1996 was therefore a "Win 4" wager on the December 8, 1996 drawing
at which a number other than "6167" was the winning number. Defendant also
alleges that all of claimant's remaining tickets bearing the notation "SUN DEC
08 96" also contain the three digit number 343 which is the Julian calendar
designation for December 8, 1996 (a leap year), thus demonstrating that those
tickets were purchased on December 8, 1996. In addition, as the State's
investigator alleges, the Lottery's business records and the tickets submitted
by claimant for payment (Exhibit 4) indicate that the seventy-seven tickets
bearing the notation "SUN DEC 08 96" were purchased at one of three locations;
namely AM Grocery, 1925 Nostrand Avenue, Brooklyn, NY (location code 00011);
Yafai Deli, 1501 Flatbush Avenue, Brooklyn, NY (location code 10112); and 1494
Deli Corp., 1494 Flatbush Avenue, Brooklyn , NY (location code 12966), contrary
to the assertion in the claim that all tickets were purchased by claimant at
Kei-Mar Wines and Liquors.
Clearly the evidence offered by the defendant is sufficient to show the
defendant's prima facie entitlement to summary judgment thus shifting the burden
to claimant to come forward with evidence in admissible form to defeat the
As noted above claimant's opposition consists solely of his own affidavit in
which he repeats the allegations set forth in his claim and conclusorily alleges
without any evidentiary support that the State computer may have made some sort
of error in printing his winning tickets in the December 7, 1996 "Win 4"
drawing. Claimant has not otherwise addressed the State's evidence submitted
on this long-standing motion. Claimant's evidence is insufficient to satisfy
his burden on the motion.
The State also argues on the motion that the claim is barred by sovereign
immunity or alternatively that its liability in a case involving "Win 4" ticket
disputes is limited by the Lottery's rules and regulations set forth at 21 NYCRR
Part 2832. Claimant did not address this argument.
The Court's power in cases involving disputes with the Division of the Lottery
is limited (Ramesar v State of New York, 224 AD2d 757; Molina v Games
Mgt. Servs., 58 NY2d 523). In fact, the Court of Appeals in Molina
at 529 stated:
The limited power of the court in cases such as this is familiar law and it
remains only for us to pass upon the reasonableness of these rules. The
Legislature may establish administrative agencies to accomplish its purposes and
such agencies may be given the power to adopt rules and regulations to advance
the purposes for which they were created. The regulations so adopted, if
reasonable, have the force and effect of law (Matter of Bernstein v Toia,
43 NY2d 437, 448; Ostrer v Schenck, 41 NY2d 782, 786). The court may not
disturb them unless they are 'so lacking in reason for [their] promulgation that
[they are] essentially arbitrary' (Matter of Marburg v Cole, 286 NY 202,
212). Because authorized gambling contracts are an exception to the general
laws, administrative rules regulating such activities are to be strictly
construed (see, Matter of Caplan v New York State Dept. of Taxation
& Fin., Div. of Lottery, 32 NY2d 134; McBride v New York City
Off-Track Betting Corp., 66 AD2d 770).
Manifestly, these rules were reasonably enacted to prevent fraud, dissipation
of funds by excessive and protracted litigation, and to insure prompt payment of
In its initial consideration of Ramesar v State of New York, 162 Misc 2d
420, the Court of Claims held that the State was insulated from liability
pursuant to the regulation governing disputes arising from ticket sales in the
State's Lotto game (21 NYCRR 2817.5) holding that the Lottery's rules and
regulations "contain provisions which so severely limit a player's remedy in the
event of disputes about winning tickets as to effectively immunize the State
from liability in that regard." Judge Benza's decision in Ramesar was
affirmed by the Appellate Division, Third Department (224 AD2d 757) and leave
to appeal to the Court of Appeals was denied (88 NY2d 811).
As relevant to the instant claim, 21 NYCRR 2832.6 provides the following
relative to "Win 4" ticket disputes:
"Disputes. In the event a dispute between the Lottery and/or the contractor and
the player occurs as to whether a ticket is a winning ticket, and if the ticket
prize is not paid, the director may, if he considers there is any doubt, replace
the entry cost of the ticket. This shall be the sole and exclusive remedy of
the player of the ticket."
As the rules and regulations of the Division of the Lottery establish the
refunding of the ticket price as the sole and exclusive remedy of the player the
State is expressly exempted from liability on disputed ticket claims such as
that asserted by the claimant herein (Molina v Games Mgt. Servs.,
supra at 529).
Accordingly, the State's motion seeking dismissal of the claim is granted,
claimant's cross-motion is denied and the claim is dismissed.
May 20, 2002
Springs, New York
HON. FRANCIS T. COLLINS
Judge of the Court of
The Court considered the following papers:
1. Notice of motion dated May 1, 2001;
Affidavit of Michael C. Rizzo sworn to May 1, 2001 with exhibits;
Affidavit of Jay Hemlock sworn to March 13, 2001 with exhibits;
Notice of Cross-Motion dated January 12, 2002;
Affidavit of Milton Gordon sworn to January 12, 2002;
Affidavit of Michael C. Rizzo sworn to January 23, 2002.
Identified by claimant as Ker-Mar Wines and