New York State Court of Claims

New York State Court of Claims

DINERMAN v. NYS LOTTERY, #2008-038-609, Claim No. 114928, Motion Nos. M-74853, M-74854, M-74786


Defendant’s motion to dismiss granted. Claim fails to adequately particularize the claim (CPLR 3013; Court of Claims Act § 11[b])

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-74853, M-74854, M-74786
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Paul F. Cagino, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 18, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


This claim was filed on March 5, 2008, alleging that there were various “omissions” by defendant relative to certain New York State Lottery games. To the extent this rambling, handwritten claim is legible, it recites six enumerated alleged events: (1) the Raffle to Riches drawing never took place between February 9, 2007 and July 7, 2007; (2) a machine indicated that an undated Lotto ticket was not a winner when, in fact, it was a winner; (3) on August 11, 2007, claimant was sold a regular Lotto ticket instead of a Lotto X ticket as she requested; (4) there was no live lottery drawing for any game on December 25, 2007; (5) there was no draw on television on November 12, 2007; and (6) indecipherable allegations about the lottery relevant to September 18, 2007. The claim states that it accrued on January 31, 2008. Defendant’s pre-answer motion to dismiss asserts that the claim does not state a cause of action with sufficient particularity, and that it fails to state an accrual date as required by Court of Claims Act § 11 (b) (Motion No. M-74786). Claimant has submitted papers to the Court that have been denominated as two motions: (1) Motion No. M-74854, in which claimant opposes defendant’s motion and requests summary judgment on the claim; and (2) Motion No. M-74853, which requests a change of venue. CPLR 3013 requires that “[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense” (see generally Vanscoy v Namic USE Corp., 234 AD2d 680, 681-682 [3d Dept 1996]). As the claim indicates that it is predicated upon “omissions,” the pleading must be construed as one sounding in negligence.[1] It is well established that the material elements of a cause of action in negligence are: “(1) the existence of a duty on defendant’s part as to [claimant]; (2) a breach of this duty; and (3) injury to the [claimant] as a result thereof” (Akins v Glens Falls City School Dist., 53 NY2d 325, 333 [1981] [citing Prosser, Torts [4th ed.], § 30, p. 143]). The general allegations in the claim – while complaining of certain alleged omissions with respect to various New York State lottery games – do not set forth any duty that is owed by defendant to claimant, or, assuming that there was a duty owed, that it was breached and that the breach was a proximate cause of an injury suffered by claimant.

Moreover, as this is a claim against the State of New York, the pleading must comply with the requirements of section 11 (b) of the Court of Claims Act in order to invoke the jurisdiction of the Court of Claims (see Lepkowski v State of New York, 1 NY3d 201, 206-207 [2003]). That provision requires that “[t]he claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed” (Court of Claims Act § 11 [b]). It has been noted that the limited waiver of the State’s sovereign immunity requires application of this provision that is “so much stricter ... than that exercised under the counterpart provision[] of the CPLR” (Siegel, Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3013, 2008 Pocket Part, at 314). The allegations in the instant claim, even when given the liberal review accorded to submissions by a pro se litigant (see Ali v State of New York, UID # 2006-028-516, Claim No. 110988, Motion Nos. M-70517, M-70665, CM-70622, Sise, P.J. [Feb. 7, 2006]), patently fail to satisfy the pleading requirements of Court of Claims Act § 11 (b). Although several of the enumerated allegations state a date upon which the alleged omission occur and generally describe the nature of the alleged omission, none of them adequately state the place where the claim arose or the injury that was suffered as a result of the omission, or provide the State with sufficient information to investigate the claim and determine its potential liability (see Lepkowski v State of New York, supra at 207).

In sum, the claim does not adequately comply with the pleading requirements of CPLR 3013 or Court of Claims Act § 11 (b), and defendant’s motion to dismiss the claim must be granted. In light of this conclusion, the Court need not address defendant’s contention that the claim does not state a date of accrual, and claimant’s motions for summary judgment and change of venue will be denied as moot. Accordingly, it is

ORDERED, that Motion Nos. M-74853 and M-74854 are DENIED, and it is further

ORDERED, that Motion No. M-74786 is GRANTED, and Claim No. 114928 is DISMISSED.

August 18, 2008
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Claim No. 114928, filed March 5, 2008;

(2) Notice of Motion to Dismiss, Motion No. M-74786, dated April 8, 2008;

(3) Affirmation of Paul F. Cagino, AAG, dated April 8, 2008.

(4) “Affirmation in Support Motion Change Venue,” filed April 15, 2008, with exhibits;

(5) “Affidavit + Affirmation in opposition to dismiss + Request for Summary Judgement,”

filed April 15, 2008, with exhibits;

(6) “Affidavit in Opposition Dismissal + Request Summary Judgement,” filed April 29, 2008,

with exhibits;

(7) “Affidavit to Oppose dismissal + Request Sum Judgement,” filed April 29, 2008,

with exhibits.

[1]. Defendant states that the claim sounds in “misrepresentation” (see Notice of Motion, April 8, 2008). The elements of such a cause of action are “that the defendant made a material misrepresentation of fact; that the misrepresentation was made intentionally in order to defraud or mislead the [claimant]; that the [claimant] reasonably relied on the misrepresentation; and that the [claimant] suffered damage as a result of its reliance on the defendant’s misrepresentation” (P.T. Bank Cent. Asia, N.Y. Branch v ABN AMRO Bank N.V., 301 AD2d 373, 376 [1st Dept 2003]). Clearly, the claim in this case does not plead each of these elements.