| Dinerman v NYS Lottery |
| 2010 NY Slip Op 00420 [69 AD3d 1145] |
| January 21, 2010 |
| Appellate Division, Third Department |
| Sally Dinerman, Appellant, v NYS Lottery,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondent.
Malone Jr., J. Appeal from an order of the Court of Claims (DeBow, J.), entered August 29,2008, which, among other things, granted defendant's motion to dismiss the claim.
Claimant apparently commenced an action in Supreme Court, Kings County, seeking moneydamages for injuries allegedly sustained as the result of defendant's conduct with respect tocertain lottery drawings. Following the dismissal of that action for lack of subject matterjurisdiction (Dinerman v NYSLottery, 58 AD3d 669 [2009]), claimant commenced this action in the Court of Claimscontending, insofar as may be gleaned from her handwritten claim, that defendant failed toconduct a televised lottery drawing (or any drawing at all) on February 9, 2007, July 7, 2007,August 11, 2007 and December 25, 2007, that her lottery ticket for September 1, 2007 scannedas a losing ticket at a local vendor even though it was a winning ticket and that a vendor failed togive her a publicized ticket discount on August 11, 2007. Claimant sought damages ranging from$3 million to $330 million. Defendant moved to dismiss for failure to comply with the pleadingrequirements of Court of Claims Act § 11 (b), and claimant cross-moved for summaryjudgment and a change of venue. The Court of Claims granted defendant's motion and deniedclaimant's cross motions, prompting this appeal.
We affirm. Pursuant to Court of Claims Act § 11 (b), the underlying claim must statethe time when and place where the claim arose, the nature of the claim, the injuries claimed tohave been sustained and, except in circumstances not relevant here, the total sum claimed (see Hogan v State of New York, 59AD3d 754 [2009]). "Failure to strictly comply with these substantive pleading requirementsis a jurisdictional defect warranting dismissal for lack of subject matter jurisdiction" (Signature Health Ctr., LLC v State of NewYork, 42 AD3d 678, 679 [2007] [citations omitted]; see Rivera v State of New York, 52 AD3d 1075, 1076 [2008]).
Here, to the extent that the claim alleges wrongdoing on the part of defendant (as opposed toan outside vendor), it fails to specify, among other things, the manner in and extent to whichclaimant purportedly was injured. Notably, although the claim sets forth the jackpot amounts forcertain lottery drawings, nowhere is it alleged that claimant actually possessed winning ticketsfor those drawings. As it is not defendant's responsibility "to ferret out or assemble informationthat [Court of Claims Act § ] 11 (b) obligates the claimant to allege" (Lepkowski v State of New York, 1NY3d 201, 208 [2003]), we cannot say that the Court of Claims erred in dismissing theclaim for failing to plead with sufficient particularity. As a final matter, although "ajurisdictionally defective claim cannot be cured through an amendment" (Hogan v State ofNew York, 59 AD3d at 755), we note that the papers submitted by claimant in opposition todefendant's motion to dismiss are of no assistance to her, as such documentation in large measurerefutes her allegations that no lottery drawing occurred on certain dates.
Peters, J.P., Rose, Stein and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.