New York State Court of Claims

New York State Court of Claims

CONSOLA v. THE STATE OF NEW YORK, #2009-015-174, Claim No. 116204, Motion No. M-76186


Defendant's dismissal motion was denied as procedurally defective and substantively deficient. Disposition of claim alleging defendant failed to pay $5 million dollars on a "winning" lottery ticket must await further motion practice or trial.

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):
Cross-motion number(s):

Claimant’s attorney:
Blangiardo & BlangiardoBy: Frank J. Blangiardo, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Joan Matalavage, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 27, 2009
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's motion pursuant to an unspecified subsection of CPLR 3211 is denied. Claimant alleges that on June 16, 2008 she won $5 million in the New York State Lottery but that the defendant unjustifiably failed to honor her ticket. She alleges causes of action for breach of contract, fraud, negligence and deceptive advertising practices in violation of General Business Law §§349, 350 and Penal Law §§ 190.20, 190.65 and 421.

According to the claim:
"The instructions on the ticket read: 'Match any of YOUR NUMBERS to any of the ten WINNING NUMBERS, win prize shown.' On the subject ticket, "YOUR NUMBER" 6 matches "WINNING NUMBER" 6 and the prize shown is $5 million" (claimant's Exhibit C, ¶ 5).

Claimant alleges that immediately after she discovered the matching numbers, she traveled to the nearest New York State Lottery Office to claim her prize and was advised that her ticket would not be honored (claimant's Exhibit C, ¶ 7). She was allegedly offered the return of the cost of the $20.00 ticket, which she refused (claimant's Exhibit C, ¶ 8).

In support of its motion, the defendant submits an affidavit from Jay Hemlock, Director of Security for the New York Lottery, together with a copy of the claimant's lottery ticket and a "reconstructed ticket". Mr. Hemlock states in pertinent part the following:
"4. That annexed hereto as Exhibit 'A' is a copy of the ticket submitted by Claimant. While the top row of scratched off numbers contains what appears to be a '6', beneath that number are the letters 'TWSIX'.

5. That when the ticket was presented to the Lottery, we asked for and received a reconstruction of the purported winning ticket for validation purposes. Upon reconstruction the top row of scratched off numbers read '27, 15, 19, 26, and 17.' The ticket reconstruction is annexed hereto as Exhibit 'B'.

* * *

8. That I am informed and believe that the difference between the ticket submitted by Ms. Consola and the reconstructed ticket has to do with the play symbol and play symbol caption. . . .

9. That a 'play symbol' is defined in 21 NYCRR 2805.4 as the symbol that appears under each of the play spots on the front of the ticket. Similarly defined is a 'play symbol caption'. By regulation, a 'play symbol caption' is the small printed material appearing below each play symbol which explains the play symbol.

10. That the ticket submitted by Ms. Consola does not have a matching 'play symbol' and 'play symbol caption'.

11. Because of this lack of consistency, the ticket submitted by Ms. Consola was not deemed a winning ticket. She was offered the $20.00 price of the ticket she purchased" (defendant's Exhibit 1).

The instant motion is procedurally defective in several significant respects. First, while the defendant purports to move for dismissal of the claim pursuant to CPLR 3211, it failed to indicate the subsection under which the motion is made. A motion to dismiss pursuant to an unspecified subsection of CPLR 3211 fails to comply with CPLR 2214 (a) which requires that "[a] notice of motion shall state . . . the grounds therefor" (see Rubin v Rubin, 72 AD2d 536, 537 [1979]). Here, both counsel for the claimant and the Court are left to speculate on the particular ground for dismissal. In the Court's view, claimant's counsel's assertion that he is prejudiced by this failure is well-founded.

Second, the defendant failed to support its motion to dismiss the claim with a copy of the claim. A motion to dismiss a claim which alleges a complete defense as a matter of law should contain a copy of the claim in order to establish the validity of the defense (see Alizio v Perpignano, 225 AD2d 723, 725 [1996]; Credit Suisse Fin. Corp. v Markson, 21 Misc 3d 1128 [A] [2008]).

Third, it is well established that affidavits may not generally be considered in support of a motion to dismiss based upon documentary evidence pursuant to CPLR 3211 (a) (1) or for failure to state a cause of action pursuant to 3211 (a) (7) (see Rovello v Orofino Realty Co. , 40 NY2d 633 [1976]; Crepin v Fogarty, 59 AD3d 837 [2009]). While dismissal is appropriate pursuant to CPLR 3211(a) (1) when an affidavit is accompanied by conclusive documentary evidence (Haire v Bonelli, 57 AD3d 1354 [2008]), the affidavit and evidence submitted here do not warrant dismissal. In this regard, the documentary proof submitted on the motion (claimant's Exhibit B; defendant's Exhibits 1, A and B) does not conclusively establish a lack of consistency between the "play symbol" and "play symbol caption" on the claimant's ticket. As a result, disposition of this matter must await further motion practice or trial.

Based on the foregoing, defendant's motion to dismiss the claim is denied.

May 27, 2009
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated January 20, 2009;
  2. Affidavit of Joan Matalavage sworn to January 20, 2009;
  3. Affidavit of Jay Hemlock sworn to January 15, 2009 with exhibits;
  4. Affirmation of Frank J. Blangiardo dated March 21, 2009 with exhibits.