WIGGINS v. THE STATE OF NEW YORK, #2005-015-020, Claim No. 109531, Motion No.
M-69589
Court granted summary judgment dismissing claim by lottery player who alleged
he was a winner on Make-A-Cashword game by spelling "SOFIBALL".
Case Information
UID:
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2005-015-020
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Claimant(s):
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JOE WIGGINS The caption of this claim was amended sua sponte by order dated August 27, 2004 and filed September 9, 2004 to name the only proper defendant. This fact seems to have been overlooked by both parties.
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Claimant short
name:
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WIGGINS
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Footnote (claimant name)
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Defendant(s):
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THE STATE OF NEW YORK
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Footnote (defendant name)
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Third-party
claimant(s):
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Third-party
defendant(s):
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Claim number(s):
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109531
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Motion number(s):
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M-69589
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Cross-motion
number(s):
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Judge:
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FRANCIS T. COLLINS
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Claimant's
attorney:
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Keith S. Barnett, Esquire
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Defendant's
attorney:
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Honorable Eliot Spitzer, Attorney General
By: Michael C. Rizzo, Esquire and Glenn C. King, EsquireAssistant Attorneys General
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Third-party defendant's
attorney:
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Signature date:
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June 7, 2005
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City:
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Saratoga Springs
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Comments:
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Official citation:
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Appellate results:
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See also (multicaptioned
case)
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Defendant's motion for summary judgment seeking an order dismissing the claim
is granted. In December 2003 claimant purchased a Make-A-Cashword game card, one
of the New York State Lottery's scratch off games. The card contained eight
three to eight letter words, each with a corresponding winning value. Word # 8
on claimant's game card (ticket) contained the word SOFTBALL with an assigned
value of $10,000. A latex covered area of the ticket designated "your letters"
set forth eighteen letters which when revealed could be combined to form any of
the 8 words set forth on the card. Claimant uncovered the letters O - L - B - F
- S - I - A and, believing that word #8 on the game card was SOFIBALL,
submitted a claim form along with his original ticket to the Division of the
Lottery (Division) which subsequently determined that it was a non-winning
ticket.
Since claimant insisted that the ticket was a winner the Division requested
that an independent entity (Pollard Bank Note LTD of Winnipeg, Canada) perform a
reconstruction of the ticket information. That reconstruction based upon coded
numbers appearing on both sides of the claimant's ticket, and explained at
length in the affidavit of Jay Hemlock, reconfirmed that the ticket was not a
winning ticket. The Division notified claimant by letter dated January 14, 2004
that his ticket was defective and that the word to be matched on the ticket was
SOFTBALL not SOFIBALL. The Division refunded claimant's $2.00 purchase
price.
Claimant served a verified notice of intention to file a
claim
[1] on the Attorney General on May 6, 2004.
Apparently believing the notice to be a claim the defendant filed an answer on
June 9, 2004. A claim was served on May 22, 2004 and filed on June 24, 2004.
Defendant filed a verified answer on July 22, 2004.
Defendant moves for summary judgment based upon the
pleadings
[2], an affidavit of defense counsel and
the affidavit of Jay Hemlock, a senior investigator with the security unit of
the New York State Division of the Lottery. Appended to the Hemlock affidavit
are business records of the Division related to the instant claim including
documents relating to the aforementioned reconstruction (Exhibits F-I) and the
Division's list of allowable 8 letter words in effect in December 2004 for the
Cashword puzzle.
By its submissions the defendant has made a prima facie showing that
claimant's Make-A-Cashword ticket was not a winning ticket and thereby shifted
the burden to claimant "to produce evidentiary proof in admissible form
sufficient to establish the existence of material issues of fact which require a
trial of the action (Zuckerman v City of New York)" (Alvarez v
Prospect Hosp., 68 NY2d 320, 324).
Claimant opposed the motion by affirmation of claimant's attorney who lacks
direct knowledge and by claimant's affidavit which incorporates his attorney's
affirmation and adds his own conclusory allegations. Specifically, claimant
alleged that he "complied with all of the Defendant's rules by matching the
letters 'SOFIBALL' as required and therefore, your Affiant was entitled to the
specified prize of $10,000". He further averred that several questions of fact
preclude summary judgment.
Summary judgment is appropriate in this case not only because the moving party
has met its burden on the motion and claimant's opposition failed to raise a
triable issue of fact but also because the law compels such a result.
The judiciary'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 2805.9 provides the following with
regard to Instant Lottery ticket disputes:
In the event a dispute between the division and the ticket bearer occurs as to
whether the ticket is a winning ticket, and if no prize is paid, the director
may, solely at his option, replace the disputed ticket with an unplayed ticket
(or a ticket of equivalent sales price from any other current instant lottery
game). This shall be the sole and exclusive remedy of the bearer of the
ticket (emphasis added).
As the rules and regulations of the Division of the Lottery establish the
replacement of the ticket with an unplayed ticket or one of equivalent 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 instant
claimant (Molina v Games Mgt. Servs., supra at 529). The Court
finds that the Division's January 14, 2004 refund of claimant's $2.00 purchase
price is the virtual equivalent of providing an unplayed ticket or one of
equivalent price as set forth in the above quoted regulation (21 NYCRR 2805.9)
and that claimant has no other available legal remedy.
Accordingly, the State's motion seeking dismissal of the claim is granted and
the claim is dismissed.
June 7, 2005
Saratoga
Springs, New York
HON. FRANCIS T. COLLINS
Judge of the Court of
Claims
The Court considered the following papers:
Notice of motion dated December 30, 2004;
Affidavit of Michael C. Rizzo sworn to December 30, 2004 with exhibits;
Affidavit of Jay Hemlock sworn to December 6, 2004 with exhibits;
Affirmation of Keith S. Barnett dated March 11, 2005 with exhibits;
Affidavit of Joe Wiggins sworn to March 14, 2005 with exhibits;
Affidavit of Glenn C. King sworn to March 14, 2005.
[1]That document titled a "notice of claim" is
included in the defendant's submissions on the motion as Exhibit A and
improperly identified as the "claim" (
see Rizzo affidavit, para 2).
[2]The irregularity of the defendant's
submissions (i.e., the notice of claim and defendant's first answer) is being
disregarded since the actual pleadings were filed with the Court Clerk and were
thus available to the Court on this motion.
