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Peri v. State

Appellate Division of the Supreme Court of New York, Third Department
Dec 21, 1978
66 A.D.2d 949 (N.Y. App. Div. 1978)

Summary

In Peri v State (66 AD2d 949 [3d Dept 1979]), affd 48 NY2d 734 [1979]), a pro se plaintiff's complaint was dismissed for failure to comply with CPLR § 3013.

Summary of this case from Strunk v. New York State Bd. of Elections

Opinion

December 21, 1978


Appeal from an order of the Court of Claims, entered September 13, 1977, which granted claimant's motion for an examination before trial and denied defendant's cross motion to dismiss the claim. Claimant purchased New York State lottery tickets during the period of November 15, 1973 to October 9, 1975. He subsequently filed a claim in the Court of Claims on October 28, 1975 alleging that New York State breached its lottery contract with claimant by misrepresenting his chances of winning said lottery and by negligently and fraudulently conducting said lottery in that the State of New York has been systematically cheating the claimant "by announcing 'winning' numbers on lottery tickets that were never sold." Claimant seeks damages of $90 for the 180 tickets purchased at a cost of 50 cents a ticket. The court ordered an examination before trial of the defendant and denied the State's cross motion to dismiss the claim pursuant to CPLR 3211 (subd [a], par 2, 5, 7). The State had sought a dismissal on the ground that the court has no jurisdiction of the causes of action because the State has not waived its immunity from claims arising from conducting a State lottery; on the further ground that the causes of action were not timely commenced and, finally, on the ground that the pleadings fail to state a cause of action. Pursuant to CPLR 3211 (subd [d]) the court allowed the claim to stand pending pretrial discovery when claimant will be in a position to properly postulate his causes of action. Such relief is within the discretion of the court and may be granted if it appears from the affidavits before the court on the motion that facts essential to justify opposition may exist but cannot then be stated. No such showing can be gleaned from the affidavits before the court. Denial of the State's cross motion for failure to state a cause of action was an abuse of discretion and the cross motion should have been granted. At a minimum, a valid complaint must include all material elements of the cause of action (CPLR 3013; Williams v. Arpie,. 56 A.D.2d 689, affd 44 N.Y.2d 689; Latzko v. Spector, 28 A.D.2d 1111, affd 22 N.Y.2d 710; Foley v. D'Agostino, 21 A.D.2d 60). The elements of negligence, fraud or breach of contract are not set out in claimant's meagerly stated claim. Order reversed, on the law and the facts, without costs, cross motion granted, and claim dismissed. Sweeney, J.P., Kane, Staley, Jr., Main and Mikoll, JJ., concur.


Summaries of

Peri v. State

Appellate Division of the Supreme Court of New York, Third Department
Dec 21, 1978
66 A.D.2d 949 (N.Y. App. Div. 1978)

In Peri v State (66 AD2d 949 [3d Dept 1979]), affd 48 NY2d 734 [1979]), a pro se plaintiff's complaint was dismissed for failure to comply with CPLR § 3013.

Summary of this case from Strunk v. New York State Bd. of Elections

In Peri v. State (66 A.D.2d 949 [3d Dept 1979]), affd48 N.Y.2d 734 [1979]), a pro se plaintiff's complaint was dismissed for failure to comply with CPLR § 3013.

Summary of this case from Earl–Strunk v. N.Y. State Bd. of Elections

In Peri v State (66 AD2d 949 [3d Dept 1979]), affd 48 NY2d 734 [1979]), a pro se plaintiff's complaint was dismissed for failure to comply with CPLR § 3013.

Summary of this case from Campbell v. Barclays Bank PLC, 2009 NY Slip Op 51417(U) (N.Y. Sup. Ct. 7/2/2009)

In Peri v State (66 AD2d 949 [3d Dept 1979]), affd 48 NY2d 734), a pro se plaintiff's complaint was dismissed for failure to comply with CPLR § 3013.

Summary of this case from Campbell v. Barclays Bank PLC
Case details for

Peri v. State

Case Details

Full title:JOHN PERI, Respondent, v. STATE OF NEW YORK, Appellant. (Claim No. 59733.)

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Dec 21, 1978

Citations

66 A.D.2d 949 (N.Y. App. Div. 1978)

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