Opinion
# 2016-038-526 Claim No. 127453 Motion No. M-88171
05-19-2016
SALLY DINERMAN v. NYS LOTTERY
SALLY DINERMAN, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Paul F. Cagino, Assistant Attorney General
Synopsis
Defendant's motion to dismiss for failure to comply with the pleading requirements of CPLR 3013 and Court of Claims Act § 11 (b) granted because pleading lacks any discernable facts that would demonstrate the nature of the claim.
Case information
| UID: | 2016-038-526 |
| Claimant(s): | SALLY DINERMAN |
| Claimant short name: | DINERMAN |
| Footnote (claimant name) : | |
| Defendant(s): | NYS LOTTERY |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127453 |
| Motion number(s): | M-88171 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | SALLY DINERMAN, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Paul F. Cagino, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 19, 2016 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
In this claim that was filed on February 1, 2016 claimant, pro se, seeks compensation in the amount of $2.00 as reimbursement for a lottery ticket plus the costs in filing and serving this claim. Defendant moves in lieu of answer to dismiss the claim on the grounds that the pleading does not comply with CPLR 3013 or Court of Claims Act § 11 (b) because it "does not provide 'sufficiently particular' notice of what transpired or the nature of the action with sufficient detail to provide the defendant with notice of what this case is alleging" (Cagino Affirmation, ¶ 5). Claimant opposes the motion.
To the extent that claimant's submission in opposition requests affirmative relief in the nature of summary judgment, such relief was not sought in a notice of motion or cross motion, and thus, it will not be considered. Further, given the Court's conclusion as to the merit of defendant's motion, summary judgment in favor of claimant would not be granted even if such relief had been properly noticed.
CPLR 3013 requires a pleading to set forth with sufficient particularity the facts intended to be proved and the material elements of each cause of action (see Vanscoy v Namic USA Corp., 234 AD2d 680, 681-682 [3d Dept 1996]; see also Dinerman v NYS Lottery, UID No. 2012-038-566 [Ct Cl, DeBow, J., Sept. 27, 2012]; Dinerman v NYS Lottery, UID No. 2008-038-609 [Ct Cl, DeBow, J., Aug. 18, 2008]). Moreover, this claim must comply with the requirements of section 11 (b) of the Court of Claims Act in order to invoke the jurisdiction of the Court of Claims (see Lepkowski v State of New York, 1 NY3d 201, 206-207 [2003]). That provision requires that "[t]he claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed" (Court of Claims Act § 11 [b]). To satisfy Court of Claims Act § 11(b), the facts set forth in the claim must be sufficiently definite " 'to enable the State . . . to investigate the claim[s] promptly and to ascertain its liability under the circumstances' " (Lepkowski at 207, quoting Heisler v State of New York, 78 AD2d 767, 767 [4th Dept 1980]). Failure to comply with the substantive pleading requirements is a fatal defect in subject matter jurisdiction that requires dismissal of the claim (see id. at 209; Kolnacki v State of New York, 8 NY3d 277, 281 [2007]; Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]; Harper v State of New York, 34 AD2d 865 [3d Dept 1970]). It has been noted that the limited waiver of the State's sovereign immunity "generates a far stricter standard of application of [the Court of Claims Act] pleading sections than applied under the counterpart provisions of the CPLR" (Patrick M. Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C:3013:15A, at 171).
The allegations in the instant claim, even when given the liberal review accorded to submissions by a pro se litigant (see Dinerman v NYS Lottery, UID No. 2008-038-609, supra; Ali v State of New York, UID No. 2006-028-516 [Ct Cl, Sise, P.J., Feb. 7, 2006]), patently fail to satisfy the pleading requirements of Court of Claims Act § 11 (b). To the extent the handwritten claim is legible, a generous reading of it, including its caption reciting the "NYS Lottery" as the sole defendant, generally reveals that claimant believes that she should have won a lottery because her ticket matched two numbers drawn, and that the drawing was not live, there was no auditor, along with other alleged deficiencies that are not legible in the claim. The claim states that it accrued on January 15, 2016 at 11:00 p.m., and that it accrued at a location of the Georgia Lottery at an address in Atlanta, Georgia, where the drawing allegedly took place, and copies of certain documents apparently related to the New York State Lottery are appended. However, the pleading lacks any discernable facts that would demonstrate the nature of the claim nor does it assert any cause of action. Claimant's opposition to the motion, including the documents appended thereto, does not adequately address the defects in the pleading. The claim fails to comply with the requirements of Court of Claims Act § 11 (b) and CPLR 3013, and thus, it must be dismissed for lack of jurisdiction. Accordingly, it is
ORDERED, that defendant's motion number M-88171 is GRANTED, and claim number 127453 is DISMISSED.
May 19, 2016
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim No. 127453 (with Exhibits), filed February 1, 2016; (2) Notice of Motion to Dismiss, dated February 22, 2016; (3) Affirmation in Support of Paul F. Cagino, AAG, dated February 22, 2016, with Exhibits; (4) Claimant's "Minopp to Dism + for SJ," undated and filed March 2, 2016, with Exhibits.