New York State Court of Claims

New York State Court of Claims

GORDON v. THE STATE OF NEW YORK, #2002-015-253, Claim No. 102689, Motion Nos. M-63451, CM-64599


Synopsis


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.

Case Information

UID:
2002-015-253
Claimant(s):
MILTON GORDON The caption of this claim was amended sua sponte by order of the Court dated October 24, 2000.
Claimant short name:
GORDON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption of this claim was amended sua sponte by order of the Court dated October 24, 2000.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102689
Motion number(s):
M-63451
Cross-motion number(s):
CM-64599
Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Milton Gordon, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael C. Rizzo, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 20, 2002
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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[1] whose 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 motion.

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 prizes.
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
Saratoga Springs, New York

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


The Court considered the following papers:
1. Notice of motion dated May 1, 2001;
  1. Affidavit of Michael C. Rizzo sworn to May 1, 2001 with exhibits;
  2. Affidavit of Jay Hemlock sworn to March 13, 2001 with exhibits;
  3. Notice of Cross-Motion dated January 12, 2002;
  4. Affidavit of Milton Gordon sworn to January 12, 2002;
  5. Affidavit of Michael C. Rizzo sworn to January 23, 2002.

[1]Identified by claimant as Ker-Mar Wines and Liquors.