New York State Court of Claims

New York State Court of Claims

WARNER v. THE STATE OF NEW YORK, #2008-041-037, Claim No. 114406, Motion No. M-75463


Synopsis


Summary judgment is granted dismissing claim seeking recovery based upon defendant’s alleged wrongful refusal to pay scratch-off lottery ticket prize.

Case Information

UID:
2008-041-037
Claimant(s):
RANDOLPH WARNER
1 1.The caption is amended to reflect the only proper defendant.
Claimant short name:
WARNER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption is amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114406
Motion number(s):
M-75463
Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
NONE
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney GeneralBy: John M. Hunter, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 2, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Defendant moves for summary judgment dismissing this claim which alleges that defendant refused to pay claimant $2500.00 for what claimant alleges was a winning $1.00 “Hot Dice” scratch-off instant lottery ticket. Claimant did not oppose the motion. The claim states that, on August 2, 2007, claimant purchased a $1.00 “Hot Dice” scratch-off lottery ticket from a retail store in Queens, New York. Claimant, after scratching off the ticket, returned to the retail store later that same day and claimed that he had won $2500.00. The “local retailer” told claimant that the ticket “was not a winner.” On September 18, 2007, claimant presented his alleged “winning ticket” to the New York State Division of the Lottery (Division) Schenectady Claim Center where it was scanned through the Division’s prize payment validation system and found to be a non-winner.
A subsequent investigation of the claimant’s ticket by the Division’s Director of the Security Unit determined that the ticket was either “defective or altered, and therefore, pursuant to Division Regulations was considered null and void and a non-winning ticket.” Claimant was advised of the Division’s determination on December 14, 2007.

In support of the motion, in addition to the affidavit and accompanying exhibits provided by the Division’s Director of the Security Unit, defendant relies upon the rules and regulations governing the New York Instant Lottery.

In particular, 21 NYCRR 2805.9 provides that:
“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.”
Further, defendant argues that pursuant to 21 NYCRR 2804.10 (c) (2):
“The Lottery shall not be responsible for:

(iv) tickets that are mutilated, altered, reconstituted, counterfeit in whole or in part, or tampered with in any manner, or miscut;

(v) tickets that have not been issued in an authorized manner, or are misregistered, defective, or printed or produced in error.
Finally, 21 NYCRR 2804.10 also requires that:
“(d) To be valid, a ticket must pass all additional confidential and security validation tests of the Lottery.

(e) Any ticket which does not conform to the requirements of subdivision (c)(2) or (d) of this section shall be considered null and void, and will not be paid. However, the director may, at his sole discretion, replace such void ticket with an unplayed ticket from the game or an equivalent one in sales price from any other game.”
In Molina v Games Management Services (58 NY2d 523, 529 [1983]), the Court of Appeals instructed that:
“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; Mc Bride 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.”
“A motion for summary judgment should be entertained only after the moving party has established, by competent admissible evidence, that it is entitled to judgment as a matter of law. . . If the movant meets this initial burden, the opposing party is required to submit evidence which raises a material issue of fact to preclude an award of summary judgment” (Ware v Baxter Health Care Corp., 25 AD3d 863, 864 [3d Dept 2006]; see Svoboda v Our Lady of Lourdes Memorial Hospital, Inc., 31 AD3d 877 [3d Dept 2006]).

Defendant has satisfied its initial burden by demonstrating that the ticket presented by claimant was either defective or altered and as such defendant was under no obligation pay a prize to claimant.

“In opposition to a motion for summary judgment a party must assemble and lay bare affirmative proof to establish that genuine material issues of fact exist. Only the existence of a bona fide issue raised by evidentiary fact rather than one based on conclusory or irrelevant allegations, will be sufficient to defeat a motion for summary judgment where the movant has made out a prima facie basis for the granting of the motion” (Archambault v Martinez, 120 AD2d 632, 632-633 [2d Dept 1986]). Further, “mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” to defeat a motion for summary judgment (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Claimant has offered no opposition to the defendant’s prima facie showing of entitlement to summary judgment relief.

The defendant’s motion for summary judgment dismissing the claim is granted and the claim is dismissed.



October 2, 2008
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims


Papers Considered:

  1. Defendant’s Notice of Motion, filed August 28, 2008;
  2. Affirmation of John M. Hunter, dated August 26, 2008, and annexed exhibits;
  3. Affidavit of Jay Hemlock, sworn August 14, 2008, and annexed exhibits.