Opinion
# 2017-038-519 Claim No. 128528 Motion No. M-89339
03-02-2017
JAMAL BEACHUM v. STATE OF NEW YORK AND NEW YORK LOTTERY
SCHIANO LAW OFFICE, P.C. By: Charles A. Schiano, Jr., Esq. ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Thomas G. Ramsay, Assistant Attorney General
Synopsis
Defendant's motion to dismiss claim for recovery on lost winning lottery ticket dismissed. Gaming Commission regulations protect defendant from liability for lost lottery tickets.
Case information
| UID: | 2017-038-519 |
| Claimant(s): | JAMAL BEACHUM |
| Claimant short name: | BEACHUM |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK AND NEW YORK LOTTERY |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128528 |
| Motion number(s): | M-89339 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | SCHIANO LAW OFFICE, P.C. By: Charles A. Schiano, Jr., Esq. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Thomas G. Ramsay, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 2, 2017 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant filed this claim alleging three causes of action seeking damages due to defendant's failure to pay claimant winnings for a lost lottery ticket. Defendant filed this pre-answer motion to dismiss on the grounds that the claim fails to state a cognizable cause of action on the merits and for lack of jurisdiction. Claimant opposes the motion.
The claim alleges that claimant lost a winning lottery ticket that he had purchased, that he was informed that the winning lottery ticket had not been cashed, and that he wrote to the New York Lottery and did not receive a response. The claim asserts three causes of action sounding in implied breach of contract, unjust enrichment and a general theory of equity.
On a motion to dismiss for failure to state a claim, "the court will 'accept facts as alleged in the [claim] as true, accord [claimants] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory' (Leon v Martinez, 84 NY2d 83, 87-88 [1994])" (Nonnon v City of New York, 9 NY3d 825, 827 [2007]). In deciding a motion pursuant to CPLR 3211(a) (7), however, a court may freely consider affidavits submitted by the [claimant] to remedy any defects in the claim and the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" (Leon v Martinez, 84 NY2d at 88 [internal quotations and citations omitted]).
Defendant argues that "[i]t is black letter law in New York that a Lottery ticket is a bearer instruments [sic] and payment cannot be made unless it is presented for payment" (Ramsay Affirmation, ¶ 5, citing Stern v State of New York, 128 AD2d 926 [3d Dept 1987], appeal dismissed 70 NY2d 746 [1987]; Heller v State of New York, UID No. 2010-039-202 [Ct Cl, Ferreira, J., Aug. 26, 2010]; Bechette v State of New York, UID No. 2004-032-089 [Ct Cl, Hard, J., Oct. 20, 2004]). Claimant asserts that the cases cited by defendant are distinguishable inasmuch as there was proof that he had purchased the lottery ticket and that no payment was made by defendant, and that his second cause of action for unjust enrichment sounds in equity.
The Court notes that counsel for both parties mischaracterize the second cause of action for unjust enrichment as sounding in equity, when it actually lies in quasi-contract (see Goldman v Metropolitan Life Ins. Co., 5 NY3d 561, 572 [2005]; Suburban Restoration Co., Inc. v State of New York, UID No. 2014-015-030 [Ct Cl, Collins, J., Jan. 2, 2015]), an action at law.
The regulations of the New York State Gaming Commission provide that lottery tickets are bearer instruments and that the Gaming Commission shall not be responsible for lost tickets (see 9 NYCRR §§ 5004.9 [c] [1] and [c] [2] [i]). The Gaming Commission's lottery regulations "are to be strictly construed," and "are binding on both the agency and the person affected" (Ramesar v State of New York, 224 AD2d 757, 759 [3d Dept 1996], lv denied 88 NY2d 811 [1996]). In Stern v State of New York, supra, the Appellate Division reviewed a similar claim sounding in negligence that sought payment on a lost lottery ticket and observed that the claim failed to state a cause of action because similar regulations in effect at the time exempted defendant from liability (see Stern v State of New York, 128 AD2d at 928; see also Heller v State of New York, supra; Bechette v State of New York, supra), and claimant cannot maintain a cognizable cause of action for his lost ticket. Accordingly, defendant's motion to dismiss the claim will be granted.
Gaming Commission regulations further provide that "[i]n all and any events, the liability and responsibility of the commission, for any [lottery draw game] tickets . . . shall be the replacement of such ticket in that or an equivalently priced other Lottery game" (9 NYCRR § 5004.9 [f]). The regulations provide in pertinent part that "[i]n purchasing a Lottery ticket, the customer agrees to comply with and abide by all applicable laws, rules and regulations, and final decisions of the commission, as well as procedures established by the commission for the conduct of any Lottery game." (9 NYCRR § 5004.9 [n]).
Claimant's effort to distinguish this claim from the cited precedent, based upon his good faith purchase of the lottery ticket is of no consequence, as defendant cannot be held liable to a claimant on a lost winning ticket under the applicable regulatory scheme (see Stern, 128 AD2d at 928). Further, although the claim in Stern and the instant claim assert different theories of liability, that does not undermine the applicability of Stern to this claim and therefore does not alter the Court's conclusion that the claimant has failed to state a cognizable cause of action for damages for a lost lottery ticket.
In light of the conclusion that the claim fails to state a cause of action, defendant's remaining arguments need not be addressed.
Accordingly, it is
ORDERED, that defendant's motion number M-89339 is GRANTED and claim number 128528 is DISMISSED.
March 2, 2017
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim number 128528, filed September 14, 2016; (2) Notice of Motion to Dismiss Claim, dated October 12, 2016; (3) Affirmation of Thomas G. Ramsay, AAG, in Support of Motion to Dismiss Claim, dated October 12, 2016, with Exhibit A; (4) Affidavit of Jamal Beachum in Opposition to Motion to Dismiss, sworn to November 21, 2016, with Claimant's Memorandum of Law and Exhibits A-B.