New York State Court of Claims

New York State Court of Claims
CONSOLA v. THE STATE OF NEW YORK, # 2010-015-105, Claim No. 116204, Motion Nos. M-77171, M-77458

Synopsis

Claimant alleged that she held the winning ticket for $5 million. Defendant moved for summary judgment contending that the ticket was a misprint and the sole remedy provided by the applicable regulations was a replacement ticket. Court granted summary judgment dismissing the claim.

Case information

UID: 2010-015-105
Claimant(s): JEANNE CONSOLA
Claimant short name: CONSOLA
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 116204
Motion number(s): M-77171, M-77458
Cross-motion number(s):
Judge: FRANCIS T. COLLINS
Claimant's attorney: Blangiardo & Blangiardo, Esquires
By: Frank J. Blangiardo, Esquire
Defendant's attorney: Honorable Andrew M. Cuomo, Attorney General
By: Joan Matalavage, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: January 15, 2010
City: Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant alleges she holds a winning New York State Lottery ticket in the amount of five million dollars and commenced this action asserting causes of action for breach of contract, fraud, negligence and deceptive advertising practices arising out of the defendant's failure to pay the proceeds of the winning ticket. Claimant moves for a change of venue to the New York District of the Court of Claims (Motion No. M-77171) and the defendant moves for summary judgment dismissing the claim pursuant to CPLR 3212 (Motion No. M-77458) on the basis that the ticket was a misprint and that any recovery thereon is limited to a replacement ticket in that game or another game of equivalent price pursuant to applicable regulations (21 NYCRR part 2805). For the reasons which follow, the defendant's motion for summary judgment dismissing the claim is granted and the claimant's motion for a change of venue is denied as moot.

Claimant purchased an Extravaganza Instant Lottery Ticket for $20.00 at a store in Deer Park, New York on June 16, 2008. The instructions on the ticket stated: "Match any of YOUR NUMBERS to any of the 10 WINNING NUMBERS, win prize shown" (see claimant's Exhibit C annexed to attorney's affirmation dated November 28, 2009). Claimant alleges that "[o]n the subject ticket, 'YOUR NUMBER' 6 matches "WINNING NUMBER" 6 and the prize shown is $5 million" (defendant's Exhibit A, Claim, 5; claimant's Exhibit C annexed to Blangiardo affirmation dated November 28, 2009, lottery ticket in issue). When claimant attempted to claim her prize at the New York State Lottery Office in Garden City she was advised that the ticket could not be honored due to an issue concerning the bar code on the ticket (defendant's Exhibit A, Claim, 7). A representative from the New York State Lottery Office in Schenectady offered to give claimant the $20.00 she paid for the ticket, which she refused (defendant's Exhibit A, Claim, 8).

In support of its motion for summary judgment, defendant submits, inter alia, an affidavit from Jay Hemlock, the Director of Security for the New York State Division of the Lottery, and an affirmation from William J. Murray, Deputy Director and General Counsel of the New York State Division of the Lottery (defendant's Exhibits C and D). In his affidavit Mr. Hemlock states, in pertinent part, the following:

"8. The ticket submitted by [the claimant] has a four-digit control number of 9833 in a box at the bottom of the front of the ticket. It also contains another box with the ticket number 004 on the front of the ticket. On the back of the ticket. . . [claimant] presented were the numbers 510-429521-004 (047) and a bar code. While the top row of the ticket's play symbols appeared to read '27 - 15 - 19 - 6 - 17' the play symbol caption under what appeared to be "6" was misprinted and not fully legible. The Lottery originally deemed the ticket to be a non-winning ticket as a result of the ticket having been scanned through the Lottery computer system to determine whether the ticket appeared on the Lottery's list of winning tickets. . . [B]ecause [claimant] apparently continued to believe the ticket was a winner, I sought a reconstruction of the ticket information. Reconstructions are performed for the Lottery by Scientific Games, one of the Lottery's contractors, which manufactured the $500,000,000 Extravaganza game and printed the tickets for that game as ordered by the Lottery. A reconstruction shows what play symbols, play symbol captions, prize symbols, and prize symbol captions are assigned to the ticket matching the identifying information provided to Scientific Games. Exhibit 'B' is a copy of the reconstruction report I received from Scientific Games based on my having given Scientific Games the identifying information of [claimant's] ticket.

9. The reconstruction revealed that a ticket with the identifying features of [claimant's] ticket should have a '26' for a play symbol and a 'TWSIX' play symbol caption for the fourth number in line 1. [Claimant's] actual ticket appeared to erroneously have a '6' over a misprinted 'TWSIX' for the play symbol and the play symbol caption. The ticket reconstruction report confirmed that [claimant's] ticket was a non-winner for the following reasons: (1) the play symbol and the play symbol caption were not present in their entirety and were not fully legible, (2) the validation number of [claimant's] ticket did not correspond with the play symbols on the ticket in accordance with the Lottery's official list of validation numbers, (3) the validation number of [claimant's ] ticket did not appear on the Lottery's official list of validation numbers of winning tickets, and (4) the ticket was partially blank and printed in error."

The affirmation of Mr. Murray likewise indicates that the ticket was not a winner "because it does not have matching play symbols, or matching play symbol captions, or in tact and fully legible play symbol captions, and the ticket's validation number does not appear on the Lottery's official list of validation numbers of winning tickets for the game, all of which are required by 2805.8 of the regulations for a valid winning ticket" (Murray affirmation, 6). Mr. Murray explains in his affirmation that the ticket was "affected by a printing irregularity apparently caused by a clogged ink jet that prevented the flow of ink to 4,500 tickets (90 books) in the $500,000,000 Extravaganza instant lottery game, leading some play symbols and play symbol captions to appear abbreviated or missing on the affected tickets" (Murray affirmation, 7).

The Division of the Lottery ("Division") is authorized to promulgate rules and regulations governing the operation of the lottery, which includes the manner of selecting winning tickets (Tax Law 1604 [3]). Under the applicable regulation, a ticket is null and void and will not be paid when it is "printed or produced in error" or fails to "pass all additional confidential and security validation tests of the Lottery" (21 NYCRR 2804.10 [c] [v] [d] and [e]). The validation requirements set forth in the regulation include the following:

"Section 2805.8. Ticket validation requirements

To be a valid instant lottery winning ticket, the following requirements must be met: . . .

(b) Each play symbol must have a play symbol caption thereunder which must agree with the play symbol.

(c) Each of the play symbols must be present in its entirety and be fully legible.

(d) Each of the play symbol captions must be present in its entirety and be fully legible . . .

(q) The validation number of an apparent winning ticket shall appear on the division's official list of validation numbers of winning tickets; and a prize for a ticket with that validation number shall not have been paid previously.

(r) The ticket must not be blank or partially blank, misregistered, defective, or printed or produced in error . . .

(t) The ticket must pass all additional validation tests of the division. Any ticket not passing all the validation requirements of this section is void and ineligible for any prize."

Defendant established its prima facie entitlement to summary judgment. The affidavit of Mr. Hemlock and affirmation of Mr. Murray indicate that the claimant's ticket was misprinted and, as reflected by the ticket reconstruction, did not have matching play symbols or play symbol captions as required by 21 NYCRR 2805.8 (b).(1) Moreover, the validation number appearing on the ticket was not on the Division's official list of validation numbers. The ticket was therefore void (21 NYCRR 2805.8 [t]).

In Molina v Games Management Services (58 NY2d 523 [1983]) the Court of Appeals made clear that "these rules were reasonably enacted to prevent fraud, dissipation of funds by excessive and protracted litigation, and to insure prompt payment of prizes" (Id. at 529). Inasmuch as public policy disfavors gambling, the governing regulations must be strictly construed (Id. at 529; Ramesar v State of New York, 224 AD2d 757 [1996], lv denied 88 NY2d 811 [1996]). Notwithstanding the claimant's contrary allegations in the claim (defendant's Exhibit A, Claim, 31 and 32), no argument is here made that the applicable regulations are unreasonable. Application of these rules therefore requires dismissal of the claim as the claimant's ticket was not a valid winning ticket and claimant was ineligible for any prize.

Moreover, disputes are governed by 21 NYCRR 2805.9, which states the following:

"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."

"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" (Wiggins v State of New York, Ct Cl, June 7, 2005 [Claim No. 109531, Motion No. M-69589, UID # 2005-015-020], Collins, J). Since no monetary remedy is available, the claim must be dismissed.

Accordingly, defendant's motion for summary judgment is granted and the claimant's motion for a change of venue is denied as moot.

January 15, 2010

Saratoga Springs, New York

FRANCIS T. COLLINS

Judge of the Court of Claims

The court considered the following papers:

Motion No. M-77171

  1. Notice of motion dated September 10, 2009;
  2. Affirmation of Frank J. Blangiardo dated September 10, 2009 with exhibits;
  3. Affidavit of Joan Matalavage sworn to October 2, 2009 with exhibit;
  4. Reply affirmation of Frank J. Blangiardo dated October 5, 2009 with exhibits.

Motion No. M-77458

  1. Notice of motion dated November 13, 2009;
  2. Affidavit of Joan Matalavage sworn to November 13, 2009 with exhibits;
  3. Affirmation of Frank J. Blangiardo dated November 28, 2009 with exhibits;
  4. Reply affidavit of Joan Matalavage sworn to December 1, 2009 with exhibit.

1. "Play symbols" are defined as "those symbols that appear under each of the play spots on the front of the ticket" and "play symbol caption" is defined as the small printed material appearing below each play symbol which explains the play symbol" (21 NYCRR 2805.4 [b] and [c]).