New York State Court of Claims

New York State Court of Claims

MANZITTO v. THE STATE OF NEW YORK, #2008-041-044, Claim No. 114535, Motion No. M-75559


Summary judgment is granted dismissing claim based upon defendant’s alleged wrongful refusal to pay lottery ticket prize where claimants concede they do not possess a winning ticket but instead assert they are entitled to $25,000.00 prize because they believed they won.

Case Information

1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Claimant’s attorney:
TACOPINA & ARNOLD, P.C.By: Brian King, Esq.
Defendant’s attorney:
New York State Attorney GeneralBy: Belinda A. Wagner, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 27, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves for summary judgment dismissing this claim which alleges that defendant refused to pay claimants $25,000.00 for what claimants allege was a winning $2.00 “Blue Moon Bucks” scratch-off instant lottery ticket. The amended claim states that, on or about October 5, 2007, claimant Patricia Manzitto (Manzitto) purchased three (3) “Blue Moon Bucks” scratch-off lottery tickets from a vending machine located in a Pathmark store in Shirley, New York. The three (3) tickets were allegedly numbered 228, 229 and 230. According to Manzitto, the ticket numbered 228 was issued from the vending machine in a torn condition and “was the grand prize winner of $25,000.00.”

On October 9, 2007, Manzitto presented her alleged “winning ticket” to a New York State Division of the Lottery (Division) Claim Center (The amended claim states that she presented her ticket to the Schenectady Claim Center while Division records indicate the ticket was presented to the Garden City 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 Manzitto’s ticket by the Division’s Director of the Security Unit determined that the alleged winning ticket “consisted of pieces of two non-winning tickets joined together with tape, and therefore, pursuant to Division Regulations was considered null and void and a non-winning ticket.”

In particular the Division investigation concluded that Manzitto’s purported “winning ticket” consisted of the top portion of “Blue Moon Bucks” ticket 549-004623-231 attached by tape to the bottom portion of “Blue Moon Bucks” ticket 549-004623-228.

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, 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 Manzitto “consisted of pieces of two non-winning tickets joined together with tape, and therefore, pursuant to Division Regulations was considered null and void and a non-winning ticket,” and as such defendant was under no obligation pay a prize to claimants.

“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]).

In response to the defendant’s motion, claimants have abandoned their claim that they purchased and presented a winning ticket, instead asserting that the motion must be denied because it is based upon:
“Defendant’s mischaracterization of the Claimants’ cause of action by linking its success solely to the lottery ticket at issue actually being a winning one.”
Claimants argue that they are entitled to a $25,000.00 prize because they thought they won the lottery. In particular, Manzitto states that she spent “$700, which I would not otherwise have spent, over the next several days. I also informed family members, friends, and co-workers that I had won the lottery.”

Claimants’ original theory of recovery, that a “winning ticket” was presented, notwithstanding that it was presented in a reconstituted condition (parts of two non-winning tickets taped together), fails by reason of the case law and Division regulations set forth above. In opposing defendant’s motion for summary judgment, claimants never even address the legal issues raised by defendant related to the reconstituted lottery ticket, nor do they dispute that the ticket was reconstituted.

Claimants’ new theory of recovery, which was not set forth in the amended claim or bill of particulars and was apparently formulated in response to the defendant’s summary judgment motion, asserts that claimants reasonably relied upon the two separate, taped-together, non-winning tickets being a winning ticket.

The claimants’ most recent theory of recovery is, to kindly describe it, optimistic. To describe its merit would require the use of less charitable adjectives. Suffice to say, it is wholly bereft of legal support.

Claimants’ “reliance” theory of recovery raises no issue of fact as “[i]t is well settled that a new theory, presented for the first time in opposition to a motion for summary judgment, cannot bar relief which is otherwise appropriate” (Scanlon v Stuyvesant Plaza, Inc., 195 AD2d 854, 855 [3d Dept 1993]; Rose v Onteora Cent. School Dist., 52 AD3d 1161 [3d Dept 2008]).

Significantly, claimants have not cross-moved to amend the claim or bill of particulars.

Even if claimants’ new theory was properly and timely presented, they provide no evidence to support their conclusory allegation that they reasonably relied upon some action or statement by defendant. The proof presented by defendant in support of its motion shows that the supposed winning ticket was an obviously and facially defective ticket. Each number on a “Blue Moon Bucks” ticket is represented by a numeral (“9” for example) and its spelling (“nine”). Exhibit A of defendant’s motion papers shows that, in the upper right hand corner of the supposed winning ticket, the numeric symbol, $10.00, does not match the spelled version of the numeric symbol by stating “ten” but instead says “forty.” Claimants could not have reasonably relied upon the two separate, taped-together, non-winning tickets being a winning ticket.

Further, Manzitto admits she began her claimed reasonable reliance prior to submitting the “winning ticket” to the defendant for validation. When the supposed “winning ticket” was presented (four days after purchase), Manzitto was immediately told that it was not a winner. In addition, Manzitto does not state how she spent $700, nor does she present the affidavit of any family member, friend or co-worker who witnessed her “significant embarrassment, humiliation and emotional distress.”

Manzitto swears in her affidavit opposing the motion that “more than ten times in the past I had purchased from that same vending machine lottery tickets that were partially torn.” She does not explain why she continued to buy torn tickets from an allegedly defective machine nor does she state if she ever advised the store manager (or anyone) of the supposedly defective machine which was allegedly dispensing torn tickets to her, or, if she did not, why she did not.

Claimants present no proof that defendant had either actual or constructive notice of a defective ticket machine. Even if claimants had presented such evidence, the Division’s rules and regulations limit recovery to a replacement ticket.

Claimants request for further discovery proceedings can neither delay nor defeat defendant’s motion. CPLR 3212 (f) states that “[if] affidavits submitted in opposition to the motion [show] that facts essential to justify opposition may exist but cannot then be stated, the court may . . . order a continuance to permit . . . disclosure to be had.” The law is clear that “mere hope that further discovery will disclose evidence that will prove claimant’s case is insufficient” (Ramesar v State of New York, 224 AD2d 757, 759 [3d Dept 1996], lv denied 88 NY2d 811 [1996]). Claimants offer nothing more than speculation and surmise that disclosure would somehow create a viable cause of action where none presently exists.

For all of the foregoing reasons, the defendant’s motion for summary judgment dismissing the claim is granted. The claim is dismissed.

October 27, 2008
Albany, New York

Judge of the Court of Claims

Papers Considered:

  1. Defendant’s Notice of Motion, filed September 22, 2008;
  2. Affidavit of Belinda A. Wagner, sworn to September 19, 2008, and annexed exhibits;
  3. Affidavit of Jay Hemlock, sworn to September 17, 2008, and annexed exhibits;
  4. Affirmation of Brian King, dated October 1, 2008, and annexed exhibits;
  5. Affidavit of Patricia Manzitto, sworn to October 1, 2008, and annexed exhibit;
  6. Reply Affirmation of Belinda A. Wagner, dated October 6, 2008.