New York State Court of Claims

New York State Court of Claims
DINERMAN v. NY LOTTERY, # 2019-038-530, Claim No. 131798, Motion No. M-93352


Defendant's motion to dismiss granted. Claimant patently fails to comply with Court of Claims Act 11 (b).

Case information

UID: 2019-038-530
Claimant short name: DINERMAN
Footnote (claimant name) :
Defendant(s): NY LOTTERY
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 131798
Motion number(s): M-93352
Cross-motion number(s):
Claimant's attorney: SALLY DINERMAN, Pro se
Defendant's attorney: LETITIA JAMES, Attorney General
of the State of New York
By: Christina Calabrese, Assistant Attorney General
Third-party defendant's attorney:
Signature date: April 15, 2019
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, pro se, filed this claim against the New York Lottery in which she appears to seek a refund for her purchase of a lottery ticket. Defendant moves for dismissal of the claim for failure to comply with the pleading requirements of Court of Claims Act  11 (b) and CPLR 3013. Claimant has not submitted any opposition to the motion, which will be granted for the reasons that follow.

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. 2018-038-555 [Ct Cl, DeBow, J., June 19, 2018]). A claim in the Court of Claims must comply with the pleading requirements of Court of Claims Act 11 (b) in order to invoke the jurisdiction of the Court (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]). 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 v State of New York, at 207, quoting Heisler v State of New York, 78 AD2d 767, 767 [4th Dept 1980]), and the 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 [1989]; Harper v State of New York, 34 AD2d 865 [3d Dept 1970]). The jurisdictional pleading requirements of the Court of Claims Act are "far stricter . . . than that applied under the counterpart provision[] of the CPLR" and supersede the CPLR's "liberal pleading standards" (Patrick M. Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3013:15A, at 170-171).

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. 2018-038-555, supra; Ali v State of New York, UID No. 2006-028-516 [Ct Cl, Sise, P.J., Feb. 7, 2006]), fail to satisfy the pleading requirements of Court of Claims Act 11 (b). To the extent the handwritten claim is legible, it alleges that "To Be Specific Jackpot ticket 0523OW18 isnt these," that " Game E is $2 not $10," that "No obvious Draw as Mega," that "Doesn't say Days of Draw on Application OW + OF," that "There seems to be a new phenomena getting Results is harder From Vendors," that claimant "was on J+ E16 Vendor said machine Down This seems to be happening more + more," (Claim number 131798, 2). The claim includes what appears to be references to retail locations, and that claimant does not "know the details of the wing #'s I want" (id.). The claim does not state where it accrued other than to state "I don't know where PB is supposed to come from" (id., 3), nor does it not provide factual allegations that would demonstrate the nature of the claim. Although the claim seeks $30.00 in damages, it fails to allege any items of damages or injuries suffered (see id., 5). This claim patently 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 motion number M-93352 is GRANTED, and claim number 131798 is DISMISSED.

April 15, 2019

Saratoga Springs, New York


Judge of the Court of Claims

Papers considered:

(1) Claim number 131798, filed August 2, 2018;

(2) Notice of Motion, dated January 3, 2019;

(3) Affirmation of Christina Calabrese, AAG, dated January 3, 2019, with Exhibits A-B;

(4) Affidavit of Service of Theresa MacPhail, sworn to January 8, 2019.