New York State Court of Claims

New York State Court of Claims

BECHETTE v. THE STATE OF NEW YORK, #2004-032-089, Claim No. 109055, Motion Nos. M-68820, M-68925


An untimely claim to recover the proceeds of a Lottery drawing that claimant asserts he won is dismissed, and his motion for permission to late file is denied for lack of merit. Because he no longer possesses the lottery ticket on which he seeks to recover, he would be unable to succeed in his claim.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-68820, M-68925
Cross-motion number(s):

Claimant's attorney:
Steven R. Smith, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Stephen J. Maher, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
October 20, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


By an Order to Show Cause issued by the Court on July 19, 2004, the parties were directed to address the issue of whether Claim No. 109055 had been properly served (Motion No. M-68820). In response, counsel for defendant submitted the affidavit of Carol A. McKay, a Senior Clerk in the Office of the Attorney General and the person with responsibility for keeping record of the notices of intention and claims filed with that office. Ms. McKay states that the only documents on file with the Attorney General relating to this claimant were the following:

1) A letter from the Court of Claims dated March 26, 2004, acknowledging receipt of the claim.

2) A document entitled "Claim" that was served on the Attorney General, by certified mail, return receipt requested, on July 28, 2004.

The Court notes that the copy of the claim served on the Attorney General arrived after issuance of the Order to Show Cause. Defendant subsequently filed an answer, on August 30, 2004. Counsel for defendant concedes that service of the claim occurred on July 28, 2004 but contends that it was untimely.

In his affirmation, counsel for claimant recites the series of events that led to filing of the claim in March 2004 and service of the claim some four months later, in July 2004. In March 2004, counsel was retained by claimant in connection with a pending Supreme Court action and, at that time, he filed the claim with this Court and served a copy of the claim by first class mail on the Assistant Attorney General who was defending the Supreme Court action (Smith affirmation I, Exhibit B). Upon receiving the Chief Clerk's letter, which acknowledged receipt of the claim and assigned it to the Albany district, counsel wrote to request that venue of the claim be moved to the New York District (id. Exhibit C). In a letter from Senior Court Attorney Kevin Macdonald, claimant's counsel was informed of the reason that the claim had been venued in Albany County and pointed to the proper procedure by which to request a change of venue (id. Exhibit D). On July 26, 2004, claimant's counsel wrote to another Assistant Attorney General, acknowledging that the Supreme Court action had been dismissed[1] and enclosing a copy of the claim in the proposed Court of Claims action (id. Exhibit E). This communication was served by certified mail, return receipt requested and received by the Office of the Attorney General on July 28, 2004. Counsel thereafter moved for an order determining that service on the Attorney General was proper and timely or, alternatively, for permission to file an untimely claim (Motion No. M-68925).

The claim seeks to recover $68,000,000.00 that claimant asserts he rightfully won in the New York Lottery Mega Millions contest that was held on December 24, 2002. Claimant purchased multiple tickets for the December 24 drawing at a newsstand located in the Kings Plaza Shopping Mall. He alleges that one of his tickets bore the winning combination of numbers: 8-24-39-43-52-43. On December 25, claimant presented his claim for the winnings by way of an e-mail and, subsequently, through correspondence with officials of the New York State Lottery. According to claimant, the New York State Division of the Lottery has unreasonably refused to honor his claim. In an affidavit accompanying the notice of motion (Smith affirmation II, Exhibit B), claimant acknowledges that he apparently lost his winning Lottery ticket when several items fell out of his pocket on the evening of December 24. He is certain that he had the winning ticket, however, because he noticed that one of the tickets contained two 43's, the street address of his mother.

Counsel for defendant states that on December 29, 2003, the New York State Division of the Lottery informed claimant, by e-mail, that he had not possessed the winning ticket (Mahar affirmation II, ¶5). An investigation was conducted and, in a letter dated January 9, 2003, claimant received further notification:
The Security Unit of the New York State Lottery has concluded an investigation regarding the Mega Millions ticket that you claimed to have recently purchased and lost. As per the information you provided via email and telephone conversations, we have been unable to locate any such tickets. In addition, be informed that the ticket information you provided is inconsistent with our computer records regarding the generation of the jackpot winning Mega Millions ticket for the December 24, 2002, drawing.
(Id. Exhibit A.)

Based on the undisputed facts presented in the motion papers, the Court can only conclude that the proposed claim lacks sufficient merit to justify permission for late filing. A lottery ticket is a "bearer instrument," and the Division of the Lottery is not responsible for lost or stolen tickets or tickets that are thrown away by mistake (21 NYCRR §§2804.10[c][1], [2]). Furthermore, the relevant regulations provide that under no circumstances may a claim be paid without a ticket being presented (§2806.5[d]). As the Third Department has stated, public policy disfavors gambling and the regulations establishing the authorized exception must be strictly construed (Ramesar v State of New York, 224 AD2d 757, 759 [3d Dept 1996], lv denied 88 NY2d 811). Without the physical winning ticket, no individual can receive the winnings, even if it is apparent that the ticket they previously possessed was, in fact, a winning one. In Stern v State of New York (128 AD2d 926 [3d Dept 1987], appeal dsmsd 70 NY2d 746), incorrect numbers were posted at the location where the lottery ticket had been purchased. When the purchaser saw the posted numbers, he asked if they were for the date of his tickets and, upon being told (erroneously) that they were, he destroyed the winning ticket. (See also, 62 N.Y. Jur. 2d Gambling § 17; Gordon v State of New York, #2000-015-110, Claim No. 102689, Motion Nos. M-62172, CM-62487, December 15, 2000, Collins, J.). Consequently, even if the Court granted claimant permission to file his untimely claim, it would not be possible for him to prevail.

Claim No. 109055 is dismissed as untimely, and claimant's motion for permission to file an untimely claim is denied.

October 20, 2004
Albany, New York

Judge of the Court of Claims

The following papers were read on the Court's motion for clarification regarding service of the claim and on claimant's motion for permission to file an untimely claim:
1. Order to Show Cause (Motion No. M-68820);

2. Affirmation Pursuant to Order to Show Cause of Stephen J. Maher, Esq., AAG, with annexed Affidavit of Carol A. McKay and other Exhibits (Affirmation I);

3. Affirmation in Response to Order to Show Cause of Steven R. Smith, Esq., with annexed Exhibits (Affirmation I);

4. Notice of Motion and Supporting Affirmation (Motion No. M-68925) of Steven R. Smith, Esq., with annexed Exhibits (Affirmation II);

5. Affirmation in Opposition of Steven J. Maher, Esq., AAG, with annexed Exhibits (Affirmation II);

6. Affidavit in opposition (none received).

Filed Papers: Claim

[1] The State moved for dismissal of the Supreme Court action on the ground that any claim for money damages against the State must be commenced in the Court of Claims (Smith affirmation II, Exhibits F, H).