Opinion
00-13946.
Decided August 7, 2000.
James F. Simermeyer, Esq., New York, New York, Attorney for Plaintiffs.
Ronald Bell, Jr. (Pro Se), Mastic, New York, Attorneys for defendant.
Order to Show Cause dated June 23, 2000 (Molia, J.); Affirmation in Support dated June 20, 2000; Exhibits A through D annexed thereto, undated and unsworn letter in response by pro se defendant; Exhibits A through C annexed thereto; plaintiff's Affidavit in Opposition to defendant's letter, sworn to July 10, 2000; Affidavit of Tribal Chief certifying the tribal resolution plaintiff seeks to enforce, sworn to July 10, 2000; and upon due deliberation the Court finds and decides as follows.
Plaintiffs seek a preliminary and permanent injunction preventing defendant, Ronald Bell, Jr., from opening or maintaining a business on Unkechaug Indian Nation land to sell cigarettes or other tobacco products. The instant controversy arises between James Magee and Rodney Magee d/b/a Smoke Signal Smoke Shop and Ronald Bell, Jr., members of the Unkechaug Indian Nation, known as the Poospatuck Indian Nation.
Jurisdiction in this matter is conferred on this Court pursuant to Indian Law Section 5 which provides:
Any action or special proceeding between Indians or between one or more Indians and any other person or persons may be prosecuted and enforced in any Court of the state to the same extent as provided by law for other actions and special proceedings.
State Courts have "jurisdiction over private civil litigation between Indians to the same extent as Courts have jurisdiction in other civil actions and proceedings ( see, People v. Anderson, 137 AD2d 259, 270, 529 NYS2d 917; Oneida Indian Nation of NY v. Burr, 132 AD2d 402, 522 NYS2d 742; Matter of Jimerson v. Halftwon Estate, 22 AD2d 417, 255 NYS2d 959)." Snyder v. Abrams, 214 AD2d 991, 991-992, 626 NYS2d 713 (4th Dept., 1995). The Court notes here that the Unkechaug Nation does not maintain a Peacemaker Court.
Title 25 of the Unite States Code, Sec. 233 provides that: "the Courts of the State of New York under the laws of such State shall have jurisdiction in civil actions and proceedings between Indians or between one or more Indians and any other person or persons to the same extent as the Courts of the State shall have jurisdiction in other civil actions and proceedings, as now or hereafter defined by the laws of such State * * * but nothing herein contained shall be construed to prevent such Courts from recognizing and giving effect of any tribal law or custom which may be proven to the satisfaction of such Courts * * *." See, In Re Nelson, 68 Misc 2d 614, 327 NYS2d 774, 777 (NY Co. Ct. 1972).
The gravamen of plaintiff's complaint is that defendant intends to open and operate a business on reservation land for the purpose of selling cigarettes and other tobacco products without permission of the Tribal Council and in violation of a Tribal Counsel Resolution dated January 21, 1999, which states, inter alia, "Resolved, that no further retail smoke shops open to the public be allowed on the Poospatuck Indian Reservation. . . ." Plaintiffs allege that defendant's actions violate their rights by engaging in unauthorized competition and seek, inter alia, an Order of this Court permanently enjoining defendant from opening and operating a retail smoke shop pursuant to the January 21, 1999 Resolution of the Tribal Council.
In opposition defendant submits an original document which declares itself to be a "letter of permission" which recites that the Resolution upon which plaintiffs rely "was over thrown" thereby, and further recites that "we the members of the Unkechaug Tribal Council, have promitted (sic) Poospatuck Indian Outpost at 130 Poospatuck Lane." The cover letter describes the Exhibit as a "signed letter of authorization from the Poospatuck Indian Tribal Council." The letter of authorization bears three (3) original signatures.
The defendant also includes a copy of a check dated June 26, 2000, made payable to defendant, drawn on the Unkechaug Indian Nation account. It is noted on the check "Repair Smoke Shop." The Court notes that the check appears to be signed by the Tribal Chief, Harry Wallace, and Abbie Langhorn, who also signed the June 30, 2000 letter of authorization. The check was purportedly authorized by members of the tribe as advanced payment to repair damage to defendant's property from a May 24, 2000 fire. The petition recites that the damage was the result of arson. The purported letter of authorization also recites that tribal law provides that the tribe may "over ride the council."
In reply, plaintiffs submit an Affidavit alleging the payment made by check was for defendant Bell's loss of property due to arson and was not as a result of tribal permission to open a smoke shop.
Indian Law Section 150 provides:
"The Poospatuck Indian nation historically has had and shall continue to have a chief, three land trustees, a tribal secretary, a keeper of the records, and a keeper of the wampums. They shall be elected by a majority vote by ballot of the blood right members of the tribe eligible to vote at the annual tribal meeting which shall be held annually on the first Tuesday in April. All officers shall hold office for a period of one year with the exception of the land trustees. The land trustees shall hold office for a period of three years, provided however, that one land trustee shall be elected each year so that continuity and experience will be maintained among the trustees.
In order to secure a Preliminary Injunction it must appear "that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiff's rights respecting the subject of the action, and tending to render the Judgment ineffectual; or that the plaintiff has demanded and would be entitled to a Judgment restraining the defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff." CPLR 6301. Plaintiff has the burden of showing "by Affidavit and such other evidence as may be submitted, that there is a cause of action, and either that the defendant threatens or is about to do, or is so doing or procuring or suffering to be done, an act in violation of the plaintiff's rights respecting the subject of the action and tending to render the Judgment ineffectual; or that the plaintiff has demanded and would be entitled to a Judgment restraining the defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff" CPLR 6312(a).
The question before the Court on plaintiff's Motion is whether plaintiff has met its burden of proof in order to be granted the extraordinary remedy of a Preliminary Injunction. In order to meet its burden, plaintiff must clearly demonstrate (1) the likelihood of its success on the merits; (2) irreparable injury to it in the absence of the preliminary injunctive relief; and (3) a balancing of the equities in its favor. Aetna Ins. Co. vs. Capasso, 75 NY2d 860, 522 NYS2d 918 (1990); IVI Environmental, Inc. vs. McGovern, 2000 WL 202690 (2d Dept., 1999). Each element of the three part test must be met. The movant must meet its burden by clear and convincing evidence. Price Paper and Twine Company vs. Miller, 182 AD2d 748, 582 NYS2d 746 (2d Dept., 1992). Due to its drastic nature, preliminary injunctive relief "will not be granted unless a clear right thereto is established under the law and the undisputed facts upon the moving papers, and the burden of showing an undisputed right rests upon the movant.'" (cite omitted). Nalitt vs. City of New York, 138 AD2d 580, 526 NYS2d 162 (2d Dept., 1988). The mere raising of "an issue of fact as to any of such elements shall not in itself be grounds for denial of the motion." CPLR 6312(c).
Plaintiffs, by Affidavit of James Magee, claims that they will suffer irreparable harm to their business if defendant is permitted to open and operate in contravention of the tribal resolution; that they will be harmed because defendant will capitalize on five years of good will and extensive advertising and five years of business relationships with plaintiff's customers wherein a trust relationship exists. Plaintiffs also aver that injury to their business will result from the confusion to their customers with the operation of a new store and that they will lose substantial revenue. These allegations are uncontroverted.
Defendant's unsworn submissions contain allegations that the January 21, 1999 resolution was modified by further acts of the tribal council. The submissions, however, are unsworn. Further, there is no proof that the defendant's submissions are authentic and valid. Plaintiffs have submitted adequate proof that the January 21, 1999 resolution is authentic, valid and the most recent ruling on the issue.
In the absence of competent proof of a subsequent tribal resolution or other legitimate modification of tribal laws, plaintiffs have demonstrated a likelihood of success on the merits. There is no competent proof of such a modification before the Court. In balancing the equities it appears that the potential harm to plaintiffs' business, operating for five years, with a customer base and investment in advertising outweighs any delay in the opening and operation of defendant's business if plaintiff is unsuccessful.
Based upon the foregoing; it is
ORDERED, that plaintiff's Motion for a Preliminary Injunction is granted to the extent that, upon the filing by plaintiff of an undertaking, pursuant to CPLR 6312 (b), in the amount of $25,000.00, defendant is preliminarily enjoined from the retail sale of cigarettes and tobacco products from any location within the Unkechaug Indian Nation lands pending a further Order of this Court; and it is further
ORDERED, that this matter is set down for a Preliminary Conference on August 17, 2000 at 9:30 a.m.
The foregoing constitutes the Order of this Court.