Edwards-Pinckney v Edwards

[*1] Edwards-Pinckney v Edwards 2017 NY Slip Op 51376(U) Decided on October 18, 2017 Supreme Court, Suffolk County Santorelli, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 18, 2017
Supreme Court, Suffolk County

Sharon Edwards-Pinckney, Caren Edwards-McNeil, Karin Edwards, Plaintiffs,

against

Curtis Edwards, Victoria Edwards, and Curtys Smoke Shop, Defendants.



614235/2017



Law Offices of James F. Simermeyer, PC

Attorneys for Plaintiffs

3040 88th st

East Elmhurst, NY 11369

Kaiteris & Kavanagh, PLLC

Attorneys for Defendants

982 Montauk Hwy, Ste 4

Bayport, NY 11705
Joseph A. Santorelli, J.

Upon the following papers numbered 1 to 47 read on this motion for a preliminary injunction ; Notice of Motion/ Order to Show Cause and supporting papers 1 - 10 ; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 11 - 19 & 20 - 32 ; Replying Affidavits and supporting papers 33 - 41 ; Other 42 - 47 (sur-reply); (and after hearing counsel in support and opposed to the motion) it is,

In this proceeding, the plaintiffs seek an order: (1) prohibiting the defendants from operating Curty's Smoke Shop; (2) prohibiting the defendants from harassing the plaintiffs or their contractors; (3) prohibiting the defendants from interfering with the use and quiet enjoyment of the plot known as 148 Poospatuck Lane, sub lots C and D, located on the [*2]Poospatuck Indian Reservation [FN1] , Mastic, New York; (4) prohibiting the defendants from erecting or causing any physical obstruction to egress by the plaintiffs and their contractors at 148 Poospatuck Lane; and (5) directing the defendant to immediately take down all fences erected by the defendant. The defendants oppose this application in all respects.

The plaintiffs are all adult enrolled blood right members of the Unkechaug Indian Nation who reside at 148 Poospatuck Lane. The land at issue is owned by the Unkechaugh Indian Reservation and is governed by the Tribal Council. The Tribal Council grants land use and the right to occupy land to blood right members of the tribe through a Certificate of Blood Right Land Ownership. The plaintiffs allege that the defendants have trespassed and encroached on their land depriving them of access and use of the land allotted to them by the Tribal Council. The plaintiffs claim that on August 8, 2005 the Tribal Council issued a Certificate of Blood Right Land Ownership to plaintiff Sharon Edwards-Pinckney for the entire plot known as 148 Poospatuck Lane. Plaintiff Sharon Edwards-Pinckney allowed her family members, plaintiff Caren Edwards-McNeil, plaintiff Karin Edwards and defendant Curtis Edwards, to reside on subplots to 148 Poospatuck Lane. Plaintiff Caren Edwards-McNeil resides at subplot C, plaintiff Karin Edwards resides at subplot D and defendant Curtis Edwards resides with his wife, defendant Victoria Edwards a non blood right member of the Unkechaug Indian Nation, on subplot B. Defendants have opened a smoke shop, Curtys Smoke Shop, upon their subplot. Plaintiff Sharon Edwards-Pinckney claims that she did not give the defendants permission to operate a smoke shop on her allotted land. The plaintiffs allege that the defendants erected a fence that encroaches on subplot D and is preventing the construction of a house upon that property. The house on subplot D is being constructed using funds from the New York State Hurricane Relief Fund which will expire in the near future. The fence also blocks egress and ingress to both subplot C and subplot D. The plaintiffs claim that the defendants harass and threaten the contractors that are attempting to build the house on subplot D.

In support of motion, the plaintiffs have submitted, inter alia, an attorney's affirmation; a [*3]copy of this Court's decision under index number 1391/2017; a copy of a Certificate of Blood Right Land Ownership dated August 8, 2005 for Sharon Edwards-Pinckney; an affidavit of Sharon Edwards-Pinckney; an affidavit of Karin Edwards; an affidavit of Caren Edwards-McNeil; copies of a Tribal Council resolution; copies of a letter verifying blood right membership for Karin D. Edwards; copies of a letter verifying blood right membership for Caren Y. Edwards-McNeil; google maps photos of 148 Poospatuck Lane and Curtys Smoke Shop; photographs of a fence; and an affidavit of Vito Gerardi. In opposition, the defendants have submitted, inter alia, two attorney's affirmations; two affidavits of Curtis Edwards; copies of the Poospatuck Indian Nation Tribal Rules, Customs and Regulations; and a redacted Certificate of Blood Right Land Ownership dated April 23, 2013. The plaintiffs submitted a reply. The Court notes that defendants' sur-reply was not considered, as it is not properly before the Court (see CPLR 2214[c]).[FN2]

Indian Law Section 5 confers jurisdiction in this matter on this Court, wherein it states that "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." "Plaintiff's action is within the contemplation of 25 USC § 233 and Indian Law § 5, which give State courts 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; Oneida Indian Nation v Burr, 132 AD2d 402; Matter of Jimerson v Halftown Estate, 22 AD2d 417)." (Snyder v Abrams, 214 AD2d 991, 991-992 [4th Dept 1995].) The Court notes that the Unkechaug Nation does not maintain a Peacemaker Court.

Indian Law Section 150 provides that

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 Matter of Spota v Jackson, 10 NY3d 46, 53 [2008], the Court held that

Indian tribes are "unique aggregations" possessing whatever "attributes of sovereignty over both their members and their territory" have not been implicitly divested by their dependent status, including the right to "self-government and territorial management" (see United States v Mazurie, 419 US 544, 557, 95 S Ct 710, 42 L Ed 2d 706 [1975]; Merrion v Jicarilla Apache Tribe, 455 US 130, 137, 102 S Ct 894, 71 L Ed 2d 21 [1982]; see e.g. Worcester v Georgia, 6 Pet [31 US] 515, 580, 8 L Ed 483 [1832]). Essential to this retained right to "self-government and territorial management" is tribes' [*4]power to make their own law on internal matters (see Santa Clara Pueblo v Martinez, 436 US 49, 55, 98 S Ct 1670, 56 L Ed 2d 106 [1978]).

In order to prevail on a motion for a preliminary injunction, the movant must demonstrate, by clear and convincing evidence, (1) a likelihood of ultimate success on the merits, (2) irreparable injury absent the granting of the preliminary injunction, and (3) that a balancing of the equities favors the movant's position (see, generally, Blinds and Carpet Gallery, Inc. v E.E.M. Realty, Inc., 82 AD3d 691, 917 NYS2d 680 [2d Dept 2011]). The purpose of a preliminary injunction is to maintain the status quo and prevent the dissipation of property that could render a judgment ineffectual (see Dixon v Malouf, 61 AD3d 630, 875 NYS2d 918 [2d Dept 2009]; Ruiz v Meloney, 26 AD3d 485 [2d Dept 2006]; Ying Fung Moy v Hohi Umeki, 10 AD3d 604 [2d Dept 2004]). The decision to grant or deny a preliminary injunction rests in the sound discretion of the Court (see Dixon v Malouf, supra; Ruiz v Meloney, supra). Further, preliminary injunctive relief is a drastic remedy that will not be granted unless the movant establishes a clear right to such relief which is plain from the undisputed facts (Blueberries Gourmet v Aris Realty Corp., 255 AD2d 348 [2d Dept 1998]; see Hoeffner v John F. Frank, Inc., 302 AD2d 428 [2d Dept 2000]; Peterson v Corbin, 275 AD2d 35 [2d Dept 2000]; Nalitt v City of New York, 138 AD2d 580 [2d Dept 1988]).

The plaintiffs' submissions include a Certificate of Blood Right Land Ownership evincing an allotment of land to plaintiff Sharon Edwards-Pinckney, acknowledgment of the plaintiffs blood right membership status and a Tribal Council Resolution signed by three land trustees. The Resolution states that the land allotted by deed, dated August 8, 2005, to plaintiff Sharon Edwards-Pinckney "has not been revoked, amended or otherwise modified in any way" and is "in full force and effect", as well as holding that "any fence blocking access to the land of Sharon Edwards-Pinckney is illegal, unauthorized and should be removed immediately."

The plaintiffs claim that they will suffer irreparable harm if defendants are permitted to continue to harass the plaintiffs' contractors, interfere with their ability to build houses on lots C and D by limiting the contractors ability to ingress and egress, and their refusal to remove the fence that was erected in contravention of the tribal resolution. In opposition the defendants claim that the documents annexed to the motion papers do not sufficiently delineate what specific parcel of land was allotted to plaintiff Sharon Edwards-Pinckney, and that it is "a land dispute that has not been decided by the Land Trustees of the Tribal Council" pursuant to the Tribe's Rules. Defendant Curtis Edwards claims that "in or about 1998, the premises was transferred to me by certificate of land ownership...my certificate of land ownership was misplaced... I have requested copies of my certificate of land ownership for the premises from the Tribe's Keeper of Records... the Tribal Council's Keeper of Records and Land Trustees have not directly responded to my requests." The defendants have failed to submit any proof that the plaintiffs' submissions are not authentic and valid.

In the absence of competent proof of a subsequent tribal resolution amending their decision that plaintiff Sharon Edwards-Pinckney's deed is valid and the fence is illegal, the plaintiffs have demonstrated a likelihood of success on the merits. In balancing the equities it appears that the potential harm to the plaintiffs' if the houses can not be completed timely under the New York State Hurricane Relief Fund outweighs the defendants claims of alleged trespass on to his property requiring the fence to be erected.

Therefore the motion for a preliminary injunction is granted to the extent that pending the resolution of this action the defendants, Curtis Edwards and Victoria Edwards, and any other persons or agents or invitees of defendants or otherwise are enjoined and restrained from: (1) harassing the plaintiffs or their contractors; (2) interfering with the use and quiet enjoyment of the plot known as 148 Poospatuck Lane, sub lots C and D, located on the Poospatuck Indian Reserevation, Mastic, New York; and (3) erecting or causing any physical obstruction to egress by the plaintiffs and their contractors at 148 Poospatuck Lane. The defendants are also directed to take down the fences that block access to the land as previously resolved by Tribal Council Resolution. The defendants shall remove the erected fence within fifteen (15) days of the date of this Order.

"While fixing the amount of an undertaking when granting a motion for a preliminary injunction is a matter within the sound discretion of the court, CPLR 6312 (b) requires that the party seeking an injunction give an undertaking." (Putter v Singer, 73 AD3d 1147, 1149 [2nd Dept 2010]; see also Livas v Mitzner, 303 AD2d 381, 383, 756 NYS2d 274 [2003]). In the Court's discretion, the plaintiffs shall be required to give an undertaking in the amount of two thousand five hundred dollars ($2,500.00) within thirty (30) days of the date of this Order.

All other relief sought by plaintiffs is denied.

The foregoing shall constitute the decision and Order of this Court.

Dated: October 18, 2017

HON. JOSEPH A. SANTORELLI

J.S.C. Footnotes

Footnote 1:The Unkechaug Nation, also known as the Poospatuck Indian Nation, is recognized by the State of New York (see Indian Law, art 10, §§ 150-153 ["The Poospatuck (Unkechauge) Indian Nation"]). For the Unkechaug, the right of occupancy on an allotment remains collectively with the tribe but must be granted to individual blood-right members unless they have been convicted of a crime, violated Poospatuck law, or deemed undesirable by a majority of tribal members (see Poospatuck Indian Nation Tribal Rules, Customs and Regulations).... The reasons why the tribe is not also federally recognized are discussed in the Report of Special Committee to Investigate the Indian Problem of the State of New York, Appointed by the Assembly of 1888, Transmitted to the Legislature February 1, 1889 (Whipple Report) (at 54-55; New York Indians, Hearings before a Subcommittee of the Committee on Interior and Insular Affairs on S. 1683, S. 1686, S. 1687, 80th Cong, 2d Sess, at 217 [1948]; Report with Respect to the House Resolution Authorizing the Committee on Interior and Insular Affairs to Conduct an Investigation of the Bureau of Indian Affairs, HR Rep 2503, 82d Cong, 2d Sess, at 531, 593 [1952]; see also Gerald Gunther, Governmental Power and New York Indian Lands—A Reassessment of a Persistent Problem of Federal-State Relations, 8 Buff L Rev 1, 22 n 130 [1958-59]. (Matter of Spota v Jackson, 10 NY3d 46, 48, n 1 [2008].)

Footnote 2:The Court notes that the affirmation in opposition dated August 9, 2017, and the affidavit in opposition dated August 10, 2017, have not been uploaded onto the NYSCEF database and do not contain an affidavit of service. Therefore the Court has not considered them.