| Consola v State of New York |
| 2011 NY Slip Op 03946 [84 AD3d 1557] |
| May 12, 2011 |
| Appellate Division, Third Department |
| Jeanne Consola, Appellant, v State of New York,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh of counsel), forrespondent.
Stein, J. Appeal from an order of the Court of Claims (Collins, J.), entered January 29, 2010,which, among other things, granted defendant's motion for summary judgment dismissing theclaim.
Claimant brought this claim against defendant seeking in excess of $15 million incompensatory and punitive damages in connection with an instant lottery ticket she purchased.Claimant alleged that the ticket was a winning ticket and that, when she attempted to claim herprize, employees of the State Division of the Lottery refused to honor the ticket. After issue wasjoined, defendant moved for summary judgment dismissing the claim. The Court of Claimsgranted defendant's motion and this appeal by claimant ensued.
We affirm. Tax Law § 1604 (a) (4) authorizes the Division to promulgate regulationsconcerning the establishment and operation of the state lottery, including "[t]he manner ofselecting the winning tickets." Knowledge of the regulations is presumed and the regulations arestrictly construed and will be given the binding effect of law unless they are found to beunreasonable (see Ramesar v State of New York, 224 AD2d 757, 759 [1996], lvdenied 88 NY2d 811 [1996]). As pertinent here, in order to constitute a winning lotteryticket, each "play symbol" on the ticket must match the "play symbol caption" beneath it(see 21 NYCRR 2805.8 [b]) and both must be fully legible and present in their entirety(see 21 NYCRR 2805.8 [c], [d]). In addition, a winning ticket "must not be. . . defective, or printed or produced in error" (21 [*2]NYCRR 2805.8 [r]). A ticket that fails to meet any of therequirements established by the regulations is not eligible for a prize (see 21 NYCRR2805.8 [t]). Pursuant to 21 NYCRR 2805.9, the "sole and exclusive remedy of the bearer of [a]ticket" who disputes that a ticket is not a winner is replacement of the disputed ticket with anunplayed ticket of equal value at the sole discretion of the Division's Director.
Here, in support of its motion for summary judgment, defendant submitted, among otherthings, the affidavit of Jay Hemlock, the Division's Director of Security, together with a copy ofclaimant's lottery ticket and a copy of a "reconstruction" of the ticket performed at Hemlock'srequest. On the face of claimant's lottery ticket, it states that the ticket holder is eligible for theprize shown if any of the "winning numbers" matches any of "your numbers." The ticket appearsto show the number 6 in both the "winning numbers" and "your numbers" sections and indicatesa prize of $5 million. However, Hemlock alleged that the ticket was misprinted and, therefore,was not an actual winning ticket. Specifically, Hemlock explained that the ticket did not have afully legible play symbol caption under the number that appeared to be a "6" (see 21NYCRR 2805.8 [b], [d]). The ticket reconstruction further revealed that the play symbol thatappeared to be a "6" should have been a "26" (see 21 NYCRR 2805.8 [c], [j]) and that thevalidation number on claimant's ticket did not match the Division's official list of winningvalidation numbers (see 21 NYCRR 2805.8 [q]). Finally, defendant demonstrated thatclaimant's ticket was one of several thousand that were misprinted (see 21 NYCRR2805.8 [r]). Accordingly, defendant asserted that claimant's sole remedy was a replacement ticket(see 21 NYCRR 2805.9). This evidence was sufficient to meet defendant's thresholdburden of establishing its right to judgment as a matter of law (see CPLR 3212 [b]) andshifted the burden to claimant to demonstrate the existence of a triable issue of fact (seeAlvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]).
In opposition to defendant's motion, claimant alleges various facts which she contendsrequire a trial. However, even assuming the truth of her allegations, she has utterly failed tocontrovert the specific inadequacies of her ticket as established by defendant or the limitation onher remedy. Moreover, the Court of Claims correctly found that claimant had not challenged thereasonableness of the regulations (see Ramesar v State of New York, 224 AD2d at 759).We have also considered claimant's remaining contentions, including her procedural challenges,and, to the extent they are preserved, find them to be without merit.
Peters, J.P., Spain, Kavanagh and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.