Carruthers v Unkechaug Indian Nation

[*1] Carruthers v Unkechaug Indian Nation 2004 NY Slip Op 51901(U) Decided on September 20, 2004 Supreme Court, Suffolk County Pitts, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 20, 2004
Supreme Court, Suffolk County

D. Scott Carruthers, SPRINGHAWK LLC and SUMMERHAWK, LLC, Plaintiffs,

against

Unkechaug Indian Nation, HARRY B. WALLACE, JAMES F. SIMERMEYER, BUD SMITH, WAYNE BOYD and EAGLE'S HILL, INC., Defendants.



20147/03

Arthur G. Pitts, J.

ORDERED that defendants Unkechaug Indian Nation, Harry B. Wallace, James F. Simermeyer and Eagle's Hill, Inc.'s unopposed motion for an order dismissing the within complaint is determined as follows: ( CPLR 3211 (a) (2), (7), (8) )

The matter at bar is one sounding in breach of contract. The plaintiffs by way of their complaint aver that on or about February 2, 2002 they entered into two separate contracts with defendant Unkechaug Indian Nation ("Unkechaug") granting the plaintiff exclusive rights to operate and manage any gaming facilities opened by the defendant Unkechaug as well as other economic development projects. Defendant Harry B. Wallace, Unkechaug's Chief, executed the contracts on their behalf. They now move for dismissal on the grounds that this Court lacks subject matter jurisdiction because defendant Unkechaug has sovereign immunity as to civil suits. [*2]

Defendants Unkechaug and Wallace's motion is granted. It is well settled that an Indian Tribe may not sue or be sued in a State Court without its consent or without express statutory authority. ( see Ransom v. St. Regis Mohawk Education & Community Fund, 204 AD2d 781, 611 NYS2d 935 [3rd Dept. 1994] ; Valvo v. Seneca Nation of Indians, 170 Misc 2d 512, 650 NYS2d 937 [ Sup Ct, Erie Cty 1996] ) Herein, no consent or statutory authority has been proffered and as such, the motion to dismiss as to defendants Unkechaug and Wallace is granted.

Defendant Simermeyer moves for dismissal alleging that this Court lacks personal jurisdiction. Before proceeding to a determination on the merits, the Court must first decide if a defendant was properly served with process (see Roseboro v. Roseboro, 131 AD2d 557 [2d Dept 1987]). Absent proper service, the Court lacks jurisdiction over a defendant (Cadin Contracting, Inc. v. Kenneth L. Rich, 158 AD2d 442 [2d Dept 1990], 551 NYS2d 43). In the case at bar, the movants have annexed an affidavit of service to their motion which indicates that a copy of the Summons and Complaint was served upon Mariela Simermeyer at and later mailed to the office of defendant James Simermeyer at 27 Union Square West, Suite 501, New York, NY. Defendant Simermeyer has submitted his affidavit as well as that of his daughter Mariela Simermeyer and his former employee Haydee Sanchez who both allege that the Summons and Complaint were not served on August 18, 2003 as set forth in the affidavit of service. Rather than resolve this question on papers alone, the Court will conduct a hearing to determine the propriety of service in this case. Accordingly, a traverse hearing is directed to be held before this Court at 9:30 am on October 21, 2004 at the Arthur M. Cromarty Court Complex, 210 Center Drive South, Riverhead, New York.

Finally, defendant Eagle's Hill Incorporated moves for dismissal on the grounds that the plaintiffs' complaint fails to state a cause of action. In determining whether a complaint pleads a viable cause of action, "the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail"(1414 Realty Corp. v. G & G Realty Co 272 AD2d 309, 707 NYS2d 885 [2nd Dept. 2000] citing Guggenheimer v. Ginzburg, 43 NY2d 268, 275, 401 NYS2d 182; see, Sutton v. Aurnou, 149 AD2d 687, 540 NYS2d 487). To state a cause of action for tortious interference with a contract the plaintiffs must plead (1) the existence of a valid contract; (2) the third party's knowledge of the contract; (3) the intentional procuring of the breach by the defendant; and (4) damages. ( William Kaufman Organization, Ltd., v. Graham & James LLP, 269 AD2d 171, 703 NYS2d 442 [1st Dept. 2000]; Susskind v. Ipco Hospital Supply Corporation, 49 AD2d 915, 373 NYS2d 627 [2nd Dept. 1975] ) In the matter at bar, the complaint is devoid of any specific allegations that the contract executed by the defendant Unkechaug would have gone forward absent the actions of the defendant. Accordingly, pursuant to the foregoing and the circumstances presented herein, the motion to dismiss as to defendant Eagle Hill Incorporated is also granted.

This shall constitute the decision and order of the Court.

Submit judgment. [*3]



Dated: September 20, 2004

J.S.C.