New York State Court of Claims

New York State Court of Claims

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

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.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
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.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Keith S. Barnett, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael C. Rizzo, Esquire and Glenn C. King, EsquireAssistant Attorneys General
Third-party defendant's attorney:

Signature date:
June 7, 2005
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


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

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated December 30, 2004;
  2. Affidavit of Michael C. Rizzo sworn to December 30, 2004 with exhibits;
  3. Affidavit of Jay Hemlock sworn to December 6, 2004 with exhibits;
  4. Affirmation of Keith S. Barnett dated March 11, 2005 with exhibits;
  5. Affidavit of Joe Wiggins sworn to March 14, 2005 with exhibits;
  6. 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.