Commissioner of the N.Y. State Dept. of Transp. v Polite

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Commissioner of the N.Y. State Dept. of Transp. v Polite 2020 NY Slip Op 35076(U) May 18, 2020 Supreme Court, Suffolk County Docket Number: Index No. 610010/2019 Judge: Sanford Neil Berland Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 610010/2019 FILED: SUFFOLK COUNTY CLERK 05/18/2020 04:39 PM NYSCEF DOC. NO. 176 RECEIVED NYSCEF: 05/18/2020 I DEX SHORT FORM ORDER 1 0. : 6100 10/2019 SUPREME COURT - STATE OF NEW YORK PART 6- SUFFOLK COUNTY PRESENT: Hon. Sanford Neil Berland, A.J.S.C. ---------------------------------------------------------------X COMMISSIONER OF THE NEW YORK STATE DEPA RTM ENT OF TRA SPO RTATION and TH E STATE OF NEW YORK, Pl aintiffs, - again st BRY A A. POLIT E LA NCELOT A. G MBS, SE ECA BOWE , D IEL COLLI SR., GER MAIN SMITH, DO AL D WILLIAMS JR., LINDA FRANK LIN, OUTDOOR, INC./IDO MEDIA LARRY CLARK, DIGITAL OUTDOOR ADVERTISING, LLC, and JDO M DIA LLC , MOT. SEQ.# 002 MD SUBMISSION DATE: JULY 9, 2019 MOT . SEQ.# 003 RTC UBMISSIO DATE: JULY 9, 2019 MOT. SEQ. # Q04 MD SUBMISSJO D TE: JULY:9, 2019 MOT. SEQ. # Q06 MD SUBMISSION:DATE: JULY 9, 2019 PLTFS' ATTOR EY: EW YORK STATE DEPARTMENT OF LAW 300 MOTOR PARKWAY, STE 23 0 HAUPPAUGE NY 11788 DEFTS' ATTORNEY: Defend ant . ----------------------------------------------------------X BYRNES O'HER & HE UGLE LLC Attorneys for defend ants Larry Clark, Outdoor, Inc ., ldon Media, Digital Outdoors Adverti ing, LLC, and ldon Media LLC 28 LEROY PLA CE REDBA K, J 0770 1 Upon reading and filing of the foll ow ing papers in this ma tter: ( I) Order to Show Ca use by pla inti ffs (mot. seq. #-006 ), s igned M ay 24, 2019, by the Hon. Che ryl A . Joseph, and support ing pa pe rs; (2) Affi rmation in Oppos it ion to Order to Show Cause by defendants Larry Clark, Outdoor, Inc ., Idon Med ia, Dig ital Outdoo r Adve rtis in g, LLC, and ldo n Med ia LLC. (mot. seq. #006), filed June 6, 2019, and supporti ng papers ; (3) Reply Affirm a ti o n in Support of Order to Show Cause by p lai ntiffs ( mot. seq . #006), file d Jun e 12, 20 I 9, and suppo rti ng papers; (4) Notice of Motion by defendants B ryan A . Po lite, Launcelot A. Gumbs, Seneca Bowen, Daniel Co ll ins Sr., Germain Smith, Dona ld Wil liams Jr., and Linda Frankl in ("the T ribal T rustee Defe nd a nts") ( mot. seq. #002), fi led Jun e I 0, 2019, and suppo rting papers; (5) o tice of Motion by plaint iffs (mot . seq. # 003), filed J un e I 0, 20 19, and suppo rting papers; (6) otice of Motion by defenda nts La rry lark , Outd oor, Inc., !don Media, Dig ital Outdoor Advertis ing, L LC, and ldon Med ia LLC. (mo t. seq . #00 4), filed June 10, 20 19, and su pporting papers; (7) Affirmat io n in Opposition by pla intiffs (mot. seq . #002 and #00 4) filed June 21, 2019, and supporting pape rs; (8) [* 1] 1 of 13 INDEX NO. 610010/2019 FILED: SUFFOLK COUNTY CLERK 05/18/2020 04:39 PM NYSCEF DOC. NO. 176 RECEIVED NYSCEF: 05/18/2020 Commissioner State of New York DOT, et al. v. Polite, et a l. Index NO. 610010-2019 Page 2 Reply Affir mation by Tri bal Trustee Defendants (mot. seq . #002), filed June 25 , 20 I 9, and supp orting papers ; (9) Reply Affirmatio n by defendants La rry Clark , O utdoor , Inc ., ldo n Med ia, Digital Outdoor Advertising, LLC, and [don Media LLC. ( mo t. seq. #004), filed June 25, 20 19, and sup po rtin g pape rs ; and ( I 0) Oral Arg um en ts having been held o n June 14, 20 19, and Jun e 27, 2019; it is ORDERED that the motions #002 , #003 , #004 and #006 are consolidated fo r determination· and it is further ORDERED that moti ons #002 and #004 and #006 are denied; and it is further ORDERED that motion #006 is denied conditionally; and it is further ORDERED that motion #003 i referred to a conference before the court to be conducted on June I, 2020 at noon , such conference to be cond ucted virtuall y. This is an acti on brought by the State of New York and the Com mi ss ione r of the State' s Department of Transportation (the "Tran portation Commi ssioner") to enjoin the construction and operation of two sixty-foot tall electronic billboards - sty led " monuments" by the defendants - on opposite sides of the State's declared and recorded right of way for Route 27, Sunrise Highway, where it bisects a tract, or tracts , of land indi sputab ly long owned and occupied by the Shinnecock Indi an at ion (the " atio n'") in the Town of Southampton. The amended com plaint names, in addition to the original. ind ividual defendant , who are al leged to be officia ls and Trustees of the Sh innecock Indian at ion, the alleged commerc ial partners of the ation in the design , constructi on, installation and operat ion of the billboards or partici pants in other aspects of the project. Althou gh it was not until 20 IO that the Shinnecock Indian Nation rece ived formal recognition by th e United States Bureau of Indian Affairs (the " BIA'"), it has been a recognized, soverei gn Indian tribe in ew York State since colonial times, a status that is, among other places, codified in Article 9 of the Ind ian Law. The matter is principally before the court on the plaintiffs ' moti on fo r· a preliminary injunction enj oin ing the com pleti on, maintenance and operation of the monuments, or billboards, and on the defendants ' motions to di mi the action for failure to join an indi spensable pa,ty and, with respect to tho e defend ants who are trustees of the Nation, on the gro und that they are clothed with th e same sovere ign immunity as the Nation itself. Also, the one non-tribal individua l defendant, Larry Clark, and the defendant entiti es with which he is affi li ated - ldon Media LLC (" ldon") and Digital Outdoor Adve11ising LLC (' Digital Outdoor") - in addition to joining in the other defendants ' moti on to dismiss the amended comp lai nt fo r failure to join an indispensable party and as barred by the ation ' s sovereign immunity - also seek di mi al of the claim again t them on the ground that ldon, Outdoor Di gital and Mr. Clark individually have no involvement in the project. In addition, [* 2] 2 of 13 FILED: SUFFOLK COUNTY CLERK 05/18/2020 04:39 PM NYSCEF DOC. NO. 176 INDEX NO. 610010/2019 RECEIVED NYSCEF: 05/18/2020 Commissioner State of New York DOT, et al. v. Polite, et al. Index 0. 610010-2019 Page 3 plaintiffs seek the irnpo ition of contempt sanction s against the defendants for completing the constructi on of the igns and operating them notwithstanding the previously entered temporary restrainin g order. The plaintiff s motion fo r a preliminary injunction proceeds from its contention that the billboards ha ve been erected on non-reservation land adjoining a state-owned right-of-away acqu ired by the State through uncontested condemnation in 1959 - without required permits and engineering and environmental approvals and are, in any event, too close to the adjoining roadway, the defendants ' from their contentions that the Nation is an indispensable party to the action because it is the owner and operator of the bi II boards, "any judgment on the merits in th is action will inequitably affect the ati on and its interests," that the billboards are on land owned by the Nation and ther fore are beyo nd the reach of state regulation , and that those defendants who are officia ls of the ation enjoy the same sovereign immunity as the ation itself. This action thus poses the related , but not identical , questions of whether structures erected and operated on land owned potentially ex-reservation by a sovereign Indian nation but located within the right of way of a State highway are subject to State regulation and , if so, under what circumstances and by what means, if any, the State can enforce those regulations through proceedings brought in New York State Supreme Court against the Nation 's e lected trustees and its commercial partners. Note that in contrast to the circumstance that confronted the nited States Supreme Court in Ci~y of Sherrill, N. Y. v Oneida Indian Nation <4 New York , 544 US 197, 203, 125 S Ct 14 78, 1483, 161 L d 2d 386 [2005] ('" City of Sherrilr ) this case does not raise the specter of a wi Idly-be lated " land grab" that wou Id be disruptive of the sett led expectations of state and local governments and of hundreds of thousa nds of individuals. Here, not only is it und isputed that the ation owns the land in question (compare Shinnecock Indian Nation v New York, 05-CV2887 TCP, 2006 WL 350 I099 [ DNY ov . 28, 2006] , affd. 628 Fed Appx 54 [2d Cir 2015], cert. denied 136 S.Ct. 2512 [June 27. 20 I 6)), but there is no doubt that the ation has owned it for many decades, if not centuries. predating most, if not all, significant development in the area and that it is the only remaining part of their once-extensi ve demesne that touc hes the Peconic Bay side of Long Island. Whether the ation' s title to the land is or can be deemed "aborigina l," that i , ori ginating be fo re systematic European colonization of the area began in the seventeenth century and continuin g thereafter without relinquishment is. however, disputed by the plaintiffs, who c laim that the ation cu rre ntl y is merely a fee owner of the prope,ty; that the parcels alt hough characterized on Suffolk County tax maps as ·'Shinnecock Indian Reservation, '' are not pa11 of any recogn ized or recognizab le Indian reservati on· and that neither the occupation nor the ownership of the land by the Nation has been continuous during any relevant historical period. [* 3] 3 of 13 FILED: SUFFOLK COUNTY CLERK 05/18/2020 04:39 PM NYSCEF DOC. NO. 176 INDEX NO. 610010/2019 RECEIVED NYSCEF: 05/18/2020 Commissioner State of _New Yo rk DOT, et al. v. Polite, et al. Index NO. 6100I0-2019 Page 4 Di cu ion Sovereign immun ity and claimed fai lu re to join a necessary pa11Y . The tribal and commercia l defendan ts have moved to dism iss the compla int on several gro und s, including what they contend is both the necessity and the impossibi lity of joi ning the Nation as a part y defendant in thi s action, and th e asse rted immunity of the ind ividual ly named tribal defendants and of those who have contracted with the Nation from both this court's j urisdiction and from the claims that the plaintiff has asserted aga inst them. Settled law, howeve r, establishes none of these gro un ds has merit. Although the defendants named by the State and the Transportation Co mmissioner in their complaint and ame nded comp la int include the officials and memb r of the Council of Trustees of the Shinn ecock In dian atio n, the ation itself, which enjoys sovereign imm unity (see Sue/Perior Concrete & Paving, Inc. v Lewiston Golf Course Corp. , 24 N Y3 d 538, 546 [2014] ("Indian tribes possess the comm on- law im munity from sui t traditionally enjoyed by soverei gn powers, unless wa ived")), has not been named as a defendant. C PLR 1001 (b) provides fi ve facto rs for cou11s to conside r in deciding whether to dismiss an action where, as here, "jurisdiction ove r [the necessary pa11y) can be obtained only by hi s con ent or appearance': "1. Whether the plaintiff has another effective remedy dismissed on account of the nonjo inde r; 111 ca e th action 1s "2. the prejudice wh ich may accru e fro m the nonj oind er to th e defe nda nt or to the person not j oin ed; "3 . whether and by whom prejudi ce futu re be avoid d;* 820 111 ight have been avoided or may in the "4. the feasibi Iity of a protective prov 1 1011 by order of the court or 111 the judgment; and " 5. whether an effective judgm ent may be rendered person who is not joined" (CPLR 100 I [b ])." (Saratoga County Chamber of Commerce, In c. v Pataki , I 00 den., 540 US 1017 [2003] .) 111 the ab ence of the Y2d 80 I, 819-20 [2003] , cert. In Saratoga County Chamber of Comm erce, Inc. v Pataki, supra op ponents of casino ga mbling brought an action in Supreme Court cha ll enging the autho rity of ew York 's governor to enter into a compact with the St. Regis Mohawk Tribe all owing cas ino gam bli ng on the [* 4] 4 of 13 FILED: SUFFOLK COUNTY CLERK 05/18/2020 04:39 PM NYSCEF DOC. NO. 176 INDEX NO. 610010/2019 RECEIVED NYSCEF: 05/18/2020 Co mm issioner State of New York DOT, et al. v. Pol ite, et al. Ind ex NO . 6 100 10-2019 Page 5 Tribe's reservatio n and into an amend ment to that compact th at allowed electron ic gam in g as well , without the approva l of the tate Legi lature. Supreme Court d i m i ·ed the action for failure to j oin the Tribe, wh ich it deemed an indispensable party pur uant to CPL R 100 I, but the A ppellate Div is ion reversed. On rema nd , Supreme Court granted summ ary judgment for the plaintiffs and declared both the compact a nd th e amendme nt to it uncon titutiona l, as vio lating the separation of powers between the executive and legislative branche of ew York's government, and therefore void and unen fo rceabl e. The Appellate Division affirmed (Saratoga County Chamber of Commerce v. Pataki, 293 A .D.2d 20. 26 740 · .Y .S.2d 733 [2002]). O n the State s appeal as of right , the Court of Ap peals agreed that the Mohawk St . Regis Tribe was not an indispensab le party to t he suit: Although its interests are ce rtainl y affected by this liti gat ion, the T ribe has chosen not to participate. Un less Co ngress provides ot he rwise, In dian tribes possess sove reign immunity against the judicial proces es of states (see e.g. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d I 06 [ 1978] · United States,. United States Fid. & Guar. Co., 309 U.S. 506, 512, 60 S.Ct. 653 , 84 L. Ed. 894 [ 1940]; Turner v. United States, 248 .S. 354, 358, 39 S.Ct. 109, 63 L.Ed . 29 1 [1919]). As a res ult. ew York cou11s cannot force the Tribe to participate in thi law uit. The tate cla im that the Tr ibe's absence require u to di mi thi a ti on. We di agree. (100 N.Y.2d 801 at 8 19). After noting that the state had a rgued that "th e prejudice to th e T ribe caused by a jud gment eviscerating the authority under wh ich it operate the casino should be sufficient to dismiss the act io n· (id., 100 Y2D at 820). whi le the plaintiffs a rgued " that there can be no remed y for the al leged constitu tiona l violation if the T ri b 's absence requ ires dismissal " (id.) , Cou 11 of Appeals expla ined There are two principal purposes of requir in g di mi a l owing to the abse nce of an ind ispensable party. Fir t, mandatory joinder prevents multiple in cons iste nt judgments · re lating to the same controversy. Second. joinder protects the otherwise absent parties who wou ld be·· mbarrassed by jud gme nts purporting to bind their ri ghts o r interests where they have had no o ppo rtunity to be heard" (First Natl. Bank v. Shuler, 153 .Y. 163, 170, 4 7 .E. 262 [1897); see generally, 3 We in te in- Korn- Mi ller, N.Y. Civ. Prac. 100 1. 01 [2002]) . Neit her purpose app li es he re . T he Tr ibe has cho en to be abse nt. Nobody has den ied it the " opportunity to be heard " ; in fact, the O neida Indi a n ation , wh ich operates the T urni ng Stone Casino, has appea red as am icus c uri ae making mu ch the sa me argume nts we wo uld expect to be made by the [St. Regi s Mohawk] Tr ibe had it chosen to parti c ipate . While sove re ig n immunity pre ve nts th e T ribe from bein g forced to participate in New York court proceedings, it does not requ ire everyone e lse to fo rego the reso lu tio n of all [* 5] 5 of 13 FILED: SUFFOLK COUNTY CLERK 05/18/2020 04:39 PM NYSCEF DOC. NO. 176 INDEX NO. 610010/2019 RECEIVED NYSCEF: 05/18/2020 Com mi ssioner State of ew York DOT, et al. v. Polite, et al. Index NO. 6100 I0-20 19 Page 6 di sputes that could affect the Tribe (see Keene v. Chambers, 271 .Y. 326. 330, 3 .E.2d 443 [ 1936)' Plaur v. HGH Partnership, 59 A.D.2d 686, 398 .Y.S .2d 67 1 [ Ist Dept.1 977]; 3 Weinstein-Korn-Mil ler, .Y . C iv. Prac. ~ I00 I. IO [citing cases]). While we ful ly respect the sovereign prero gati ves of the Indian tribes, we will not permit the Tribe's voluntary absence to depri ve these plaintiffs (a nd in turn any member of th e public) of their day in court. ( I 00 NY2d at 820-21 ). Sovereign immunity and re li ef. As to whether the re lief the plaintiffs here are seek ing can be obtained at all in the Nation's absence and by proceeding, instead, against the Nation 's offic ials and those with whom it has entered into commercial relati onships, and, even if so, whether some or all of the latter share in the Nati on's sovereign immunity, the law is also well settled. Here, the Tribal defendants seek to characte rize themselves as merely "nominal " patties in thi s action, but a gove rnmental body, includin g a soverei gn Indian Nation, can act only throu gh the instrum entality of its offic ials (see (Michigan v Bay Mills Indian Community , 572 US 782 795 [2014]) ("Bay Mills"). Bay Mills was an action by the State of Michigan to enJoin the Bay Mill s Indi an Comm unity - a fede rall y recognized Indian Tribe with which the State had entered into a compact allowing the tribe to operate a gam ing facility on " Indi an land s" and which was operating a cas ino on its reservati on - fro m operating a second gaming faci lity on land 125 miles from the Bay Mi ll s re ervat ion th at the Tribe had subsequentl y acqu ired using interest it had earned on a federa l compensatory ap propriat ion and which the Tribe deemed "lndian land." Reaffirming the coro llary principles th at tribal sovereign immunity "• is a matter of federal law and is not ubject to diminution by th e States·" (572 US at 789, quofing Kiowa Tribe of Okla. v. Manufacturing Technolo 0 ies, In c. , 523 U.S . 751, 756 [1998] , that there is "no exception fo r suits arising from a tribe's comm ercial activ ities, even whe n they take place off fndian land s'· (572 S at 790), that ' [t]o abrogate [such] immunity. Congress must ' unequivoca lly" ex press that purpose ,. (id., quoting C & L E nterprises, In c. v. Citizen Ban d Pota watomi Tribe of Okla. , 532 U.S. 41 1, 418 (200 I]. quoting Santa Clara Pueblo v. Martinez , 436 U.S. 49, 58 [ 1978]), and that the provi ion of the Indi an Gaming Regulatory Act (lGRA ) under which Michigan was seek ing to proceed aga inst the Bay Mills Indian Commun ity, 25 USC 27 10(d)(7)(A)( ii ) onl y authorizes suits to enj oin gami ng activity on Indian lands - which Michigan claimed was not the case - the Court held that ·'[a]ccordingly, Michigan ma y not ue Bay Mil ls to enjoin the Vanderb ilt casino, but must instead use ava ilable alternative means to accomp lish that object" (572 US at 804 [emphasis supp lied]). As to those "alternative means " as Justice Kagan , writing fo r the majority, exp lained: [* 6] 6 of 13 FILED: SUFFOLK COUNTY CLERK 05/18/2020 04:39 PM NYSCEF DOC. NO. 176 INDEX NO. 610010/2019 RECEIVED NYSCEF: 05/18/2020 Commissioner State of New York DOT, et al. v. Polite, et al. Index 0.610010-2019 Page 7 True enough, a State lacks the abi lity to sue a tribe for illegal gaming when that activity occurs off the reservation. But a State, on its own lands has many other powers over tribal gaming that it does not possess (absent consent) in Indian territory. nless federal law provides differently. '' Indian s going beyond reservation boundari es" are subject to any genera ll y applicable state law. See **2035 Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95, 113, 126 S.Ct. 676, 163 L.Ed .2d 429 (2005) (quotin g Mescalero Apache Tribe v. Jones, 411 U.S. 145 , 148, 93 S.Ct. 1267 36 L.Ed.2d 114 (1973)). So, for example, Michigan could, in the first instance, deny a license to Bay Mills for an off-reservati on *796 casino. See Mich. Comp. Laws Ann. §§ 432.206432.206a (West 2001). And if Bay Mills went ahead anyway. Michigan could bring suit against tribal officials or employees (rather than the Tribe itself) seeking an injunction for, say, gambling without a license. See § 432.220; see also§ 600.3801 ( 1) (a) (West 2013) (designating illegal gambling fac ilities as public nuisances). As this Cou11 has stated before. analogizing to Ex parte Young, 209 .S. 123 , 28 S.Ct. 441 , 52 L.Ed. 714 (1908), tribal immunity does not bar such a suit for injuncti ve relief again t individuals, including tribal officers, respon sible for unlawful conduct. See Santa Clara Pueblo, 436 U.S., at 59, 98 S.Ct. 1670. And to the extent civil remedies proved inadequate, Michigan could re ort to its criminal law, prosecutin g anyone who maintainsich. Comp. or even frequent -a n unlawful gamb ling establi hment . See Laws Ann. §§ 432.218 (West 200 I), 750.303 , 750.309 (West 2004). In short (a nd contrary to the dissent's unsupported assertion, see post, at 2051 ), the panop ly of tools Michigan can use to enforce it law on its own lands- no less than the suit it cou ld bring on Indian lands under§ 2710(d)(7)(A)(ii)-can shutter, quickly and permanentl y, an illegal casino. (Michigan v Bay Mills Indian Community. 572 US at 795-96 [2014][footnote omitted]). ee also Gingras v Think Fin., Inc. , 922 F3d I 12, 121 [2d Cir 20 19], cert denied sub nom. Sequoia Capital Operations, LLC v Gingras , 140 S Ct 856, 205 L Ed 2d 458 [2020] ("The question before us, however, is whether Plaintiff can sue tribal offic ia ls, in their offic ial capacities, for prospective, injunctive relief to bar violations of state law. We hold that they can . The fir t and most obvious justification for our affirmative answer to this question is that the Supreme Cowt has already blessed Ex parte Young-by-analogy suits again t tribal officia ls for violations of state law''). At this juncture, then, the immunity claims of the Tribal defendant , and their challenge to the court ' s subject matter jurisdiction cannot be su tained. To the extent the commercial defendant ' claims of immunity are derivative of the a sertions of sovereign immunity by the Tribal defendants or share the same predicate. i.e. , that they are agent acting on behalf of the Nation and share its sovereign immunity, their immunity claims fail for the same reasons those of the Tribal defendants fail. To the extent they claim that they are an "arm'' of the Nation and share in its sovereign immunity on that ba i , they have failed to make the requ isi te showing (see [* 7] 7 of 13 FILED: SUFFOLK COUNTY CLERK 05/18/2020 04:39 PM NYSCEF DOC. NO. 176 INDEX NO. 610010/2019 RECEIVED NYSCEF: 05/18/2020 Commissioner State of ew York DOT, et a l. v. Polite, et al. Index NO . 6100I0-2019 Page 8 Sue/Perior Concrete & Paving, Inc. v Lewiston Go({Course Corp. , supra, 24 Y3d at 546-47). In that case, the Court of Appea ls, quotin g from its 1995 decision in Matter of Ransom v St. Regis Mohawk Educ. & Community Fund, 86 Y2d 55 3 [ 1995), a1iicul ated the fa ctors that are to be considered in determining whether an enti ty "that i affili ated with an Indian tribe has the right to claim sovereign immunity aga in t uit,·' a fo ll ow : "Although no set formula is di po iti ve, in determining whether a parti cular tribal organizati on is an ' arm· of th e tribe entitl ed to share the tri be 's immunity from suit, courts generall y consid er such factor a whether: [I ] the entity is organized under the tribe's laws or constitution rather than Federal la w· [2] the organization's purpose are similar to or erve those of the triba l gove rnm ent; [3] the organization' go vernin g body is compri sed ma inl y of tribal offici a ls; [4] the tribe has legal title or owner hip of pro perty used b the orga ni za ti on; [5] tribal officials exercise control over th administrat ion or acco unting activities of the organi zati on; and [6] th e tribe's go ernin g body ha power to dismiss members of the orga ni za ti on's governin g body. Mo re importantl y, courts wi II consider whether [7 ] the corporat enti ty g nerate it own revenue, whether [8] a suit aga in st th e corporation will im pact the tribe' fiscal resources, and whether [9] the subentity ha the power to bind or obli gate the funds of the trib e. The vuln era bility of the tribe' offer in defe ndin g a uit against the subentity indi cate th at th e rea l party in in te re t i th e tribe.·· (Ransom, 86 Y2d at 559-560 [intern al qu tat ion mark , c itation and brackets omitted].) (Sue/Perior Concrete & Paving, Inc. v Lewiston Golf Course Corp . . 24 Y3d at 546-47). At least on the current record it doe not appear th at the comm ercial defend ants meet an y of these criteria independently or in their relationship with the ation. Whil e it may be the successful performance of their respecti ve role in the billboard ente rpri e will impac t the ati on' s fi sc, that possibility alone - and which remain s to be demon trated - i in uffi cient to immuni ze those defendants from suit (see id. , 24 NY 3d at 548). Accordingly, the motions to di smi s are, al thi tim e, deni ed. Plaintiffs ' motion for a preliminary injunction. On a motion for a preliminary injuncti on, the movant mu st dem onstrate (l) a likelihood of success on the merit , (2) irreparable injury absent the granting of the preliminary injunction, and (3) a balancing of the equiti es in the rnovant's favor (see Doe v Axelrod, 73 NY2d 748, 750 [ 1988) ; Automated Waste Disposal, inc. v Mid-Hudson Waste, inc. , 50 AD3d I072, I 072-1073 [* 8] 8 of 13 FILED: SUFFOLK COUNTY CLERK 05/18/2020 04:39 PM NYSCEF DOC. NO. 176 INDEX NO. 610010/2019 RECEIVED NYSCEF: 05/18/2020 Commissioner State ofNew York DOT, et al. v. Po lite, et al. Index NO. 610010-2019 Page 9 [2008] ; Petervary v Bubnis, 30 AD3d 498 [2006]). "'A party eeking the drastic remedy of a preliminary injunction mu t e tabli sh a clear ri ght to that relief under the law and the un disputed fac ts'· ( Omakaze Sushi Rest., inc. v Ngan Kam Lee, 57 AD3d 497 [2008]; see Miller v Price, 267 AD2d 363, 364 [1999]). The purpose of a prel iminary injunction i to mai ntain the status quo, not to determine the ultimate right of the parties (see Moody v Filipowski, 146 AD2d 675, 678 [ 1989]- Matter of 35 N. Y. 'ity Police Officers v City of New York, 34 AD3d 392. 393-394 [2006]) (Wheaton/TMW Fourth Ave., LP v New York City Dept. of Bldgs. . 65 AD3d I 051 , I052 [2d Dept 2009]). As the Appel late Divi ion wrote in Deutsch v Grun wait!, 165 AD3d I035, I037 [2d Dept 20 18]: "To obtain a preliminary injunction, the moving party mu t demonst rate (I) a like lihood of success on the merit , (2) irreparable injury absent a pre liminary injunctio n, and (3) that the equitie balance in his or her favor'· (Carroll v. Dicker, 162 A.D.3d 74 1, 742, 80 .Y .. 3d 69; see PLR 630 I· Gonzalez v. .Y .. 3d 689). ·'The 231 Maujer St. , HDFC, 157 A.D.3d 869. 870. 69 decision to grant or deny a preliminary injunction r st in the ound discretion of the Supreme Couit'' (Ruiz v. Me /oney, 26 A.D.3d 485. 486 810 .Y.S.2d 216;seeDoe v. Axelrod, 73 1.Y.2d 748,750.536 .Y .. 2d 44. 532 .E.2d 1272; Automated Waste Dispo al, inc. v. MidHud ·on Waste , Inc., 50 .D .3d I 072, 857 .Y.S.2d 648). Here. a preliminary injunction wa warra nted to maintain the status quo (see Arcamone- Makinano v. Brillon Prop .. inc., 83 A.D.3d 623 920 .Y.S .2d 362). ·'Where denial of injuncti e rel ief wou ld render the final judgment ineffectual. the degree of proof r quir d to estab lish the element of likelihood of succes on the merit hould be accord ingly reduced" (Sau Thi Ma v. Xuan T Lien , 198 A.D.2d 186, 187. 604 .Y .. 2d 84 [i nternal quotation marks and citat ion omitted]). The plaintiff wou ld suffer irreparable injury absent the re lief ought and the ba lanc of th equ ities favo rs the plaintiff give n the prejudice that the plaintiff wou ld uffer from a denial of the requested relief(see id. at 187,604 .Y .. 2d 84). (Deutsch v Grunwald, 165 AD3d at I037). With respect to the first element plai ntiff: must demon trate in orde r to susta in their motion for a prelimin ary inju nct ion. like li hood of success on the me rit , their showing largely relies on the outcome of inconclusive prior litigati on between the State and the Natio n, and others in fede ral court. In 2007, in the context of actions, origina lly brought in state court, to prevent the Nation and its tribal officia ls from pursuin g an ann ounced plan to construct a cas in o and conduct gamin g activities on the Westwoods property, the Uni ted State District Court for [* 9] 9 of 13 FILED: SUFFOLK COUNTY CLERK 05/18/2020 04:39 PM NYSCEF DOC. NO. 176 INDEX NO. 610010/2019 RECEIVED NYSCEF: 05/18/2020 Co mmi ssioner State of ew York DOT, et al. v. Pol ite, et al. Index NO. 6 100 10-20 19 Page 10 the Eastern D istrict of ew York (Bianco. J .) after a thirty-day bench tr ial 1, concluded that the ation ' s title to the Westwoods prope1ty i not aboriginal and that even if it were, the constructi o n a nd operation of a ga ming casino there by the ati on wo uld have such "disruptive conseque nces" upon ·' neighboring landowne r the own [ of Southampton] and the greater Suffolk County commun ity" as to implicate the ba r of City of Sh errill, N. Y. v Oneida Indian Nation of New York , 544 US 197, 203 , 125 S Ct 1478, 1483, 161 L Ed 2d 386 [2005 ], and , moreove r, because the BIA had no t as of that time recogn ized the Nati o n's tribal statu s, the thenproposed gamin g venture wo uld not benefit from the safe haven from appl icat ion of state antigam ing laws provided for q ua lifyin g tribal gaming ente rprises by the Ind ia n Gaming Regu latory Act, 25 USC §§ 270 I et seq. (" IGRA ") (Ne w York v. Shinnecock Natio n , 523 FS upp2d 185, 188-89 [EDNY 2007]. as amended [2008]). Acco rding ly. the District Court granted the State perm anent inj unctive and declaratory rel ief preventing the ati o n fro m deve lopin g and operatin g a gam in g faci li ty o n the Westwood property. On appeal , howeve r, the Court of A ppea ls determ in ed that the Di stri ct Co urt wa wi thout subject matter juri sd icti o n, as the State 's c lai ms again st the defe ndants rai se d no federa l question but only refe renced federa l law in anticipation of the Nation 's defenses, and , w ithout reach ing the merit of the Nat io n's appeal, vacated the Di stri ct Co urt's judgment and remanded the action to the District Court with in structi o ns to remand it to state court w here it o ri gina ted (see 686 F3d 133 [2d Cir 20 12]). I Among other things, the District Court rejected the plaintiffs· contention that the defend ants were collaterally estopped from claiming that the ation he ld unextingu ished aborig inal title to the Westwoods property as a consequence of the holding in King v. Sh inn ecock Tribe <~{ Indians, 221 N.Y .S .2d 980 (Su p.Ct. Suffo lk Co unty 196 1), that the Shinnecock at io n' s " right of occupancy" in a strip of land lying west of Ca noe Place and a quarter-mi le so uth of Montauk highway "was extingui shed by the sove reign ," as, amo ng other th in g . that holding followed fro m a stipu latio n made in that case by the State of ew Yo rk - w hi ch oste ns ib ly represe nted · the Natio n in a trust capaci ty" in the King actio n but was acting adver ely to the ation in the acti on before the Distri ct Court (i.e., it wa citing the product of its own tipulation fo r the ation in the King case as binding the ati on a il adversa ry in the act io n before the D istrict Court) and without any " ind ication fro m the record·· that the stipulation wa entered into by the State on behalf of the ation " wit h the inte nt to be bound in subsequ ent actio ns'· (523 FSupp2d at 255 ). It is notable that prior to the trial, after denying the State's motio n to rema nd the State's action to Suffolk County Supre me Cou rt where it ha d bee n brought, an d conso lidating th at actio n with the paralle l actio n that th e Town had filed in Supre me Court and w hi ch had also bee n removed to fede ral co utt, the District Court (P latt. J .) had granted the at ion' s motion for summary judgment on the iss ue o f\ hether it i an ·' Indi an T ribe·· pursuant to fede ral common law as articul ated in Montoya v. United States, 180 U. S. 261 . 266 [ 190 I] a nd Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 5 1. 59 (2d C ir.1994). but ot he rwise denied the parties' respective motio n for sum ma ry jud g me nt and part ial sum mary judgment (see New York v Shinnecock Indian Nation , 400 FSupp2d 486 [ED Y 2005]) . [* 10] 10 of 13 INDEX NO. 610010/2019 FILED: SUFFOLK COUNTY CLERK 05/18/2020 04:39 PM NYSCEF DOC. NO. 176 RECEIVED NYSCEF: 05/18/2020 Commissioner State of New York DOT, et al. v. Polite, et al. Index NO. 610010-201 9 Page 11 Thus, the plaintiffs' allegation that " the Westwoods property is not aboriginal or sovereign lands" (Amended Complaint ~38), which they footnote to the concededly vacated District Court decision in New York v. Shinnecock Nation, supra, is, at this juncture, subject to dispute. At the same time, it is undisputed that the Shinnecock Nation's ancestral domain encompassed essentially the entirety of what is now the Town of Southampton, and it has been established that the presence of the Nation in that domain has been continuous (see Summary under the Criteria and Evidence for the Proposed Finding for Acknowledgment of the Shinnecock Indian Nation (Petitioner #4), Approved December 17, 2009 [U nited States Department of the Interior, Bureau of Indian Affairs]. Ultimately, the burden will be upon the State and Town plaintiffs to refute the defendants' contention that the Nation has sovereign control over the Westwoods property. On the current record , it is impossible to conclude that the plaintiffs will succeed in doing so. Among many other things, the Tribal defendants continue to challenge the validity and effectiveness, pa1ticularly in the face of th en-existing prohibitions on the acquisition by individua ls of tribal land, of the Seventeenth Century instruments that the State relied upon in the earlier federa l litigation as the basis for its extinguishment contention, as well as questioning the sufficiency and fairness of the proceeding in wh ich the colonial authority determined that those instruments should be ratified2, which is their right (see, e.g. , 523 FSupp2d at 269-72; compare Kaufman v Eli Lilly and Co., 65 Y2d 449, 455-56 [ 1985] (" the party to be 2 See, e.g., Nelson, W.E., Legal Turmoil In A Factious Colony: New York, 1664-1776, 38 Hofstra Law Review 69 [2009). As Professor Nelson writes, the mixed, and in many respects ad hoc, colonial legal structures that th e British Governor of 111 id -17 th Century New York oversaw were far from consistent or ideal: When Colonel Richard Nicolls, the first English governor of NewYork, arrived in the fall of 1664, two quite different legal systems confronted him. On Manhattan Island and along the Hudson River, sop histi cated courts modeled on those of the Netherlands were resolving disputes learned ly in accordance with Dutch customary law. On Long Island, Staten Island , and in Westchester, on the other hand , English courts were administering a rude , untechnical var iant of the common law carried across the Long Island Sound from Puritan New England and practiced without the intercessi on of lawyers. T he task for Nicolls was to co ntrol th ese Dutch and Puritan legal systems . The main argument of this Articlet is that he di d not perform that task we ll . On the contrary, he set in motion constitutional dynamics that his successors over the next 110 years either could not or wou ld not change .... id. , 38 Hofstra Law Review at 69. As Professor Nelson poin ts out, the legal milieu in the Town of Southampton was by no means less protean or more predictable or well grounded in that time. See, e.g., id. at 70-72, 75 and passim. [* 11] 11 of 13 INDEX NO. 610010/2019 FILED: SUFFOLK COUNTY CLERK 05/18/2020 04:39 PM NYSCEF DOC. NO. 176 RECEIVED NYSCEF: 05/18/2020 Co mmi ssioner State of ew York DOT, et al. v. Polite, et al. Index 0. 6100 10-2019 Page 12 precluded from relitigating the issue must have had a full and fai r o ppo11unity to contest the prior deterrn ination"). Further, the electron ic s ign . however eye catching they may be - wh ich, presumabl y, is the intent that underli es th em - pose no ne of the disrupti ve consequences that the federal District Co urt attributed to the previo us ly pro po ed gam in g venture and. unle constructed and operated without regard to accepted eng ineer in g standards, w hich appea rs not to be the case - pose no unacceptable safety risk. On the other hand , as the de fendants urge, the adve11ising revenue that that the ation hopes to earn represents a n important revenu e sou rce for the Nation. As the United Court of Appeal s for the Ninth C ircuit wrote in an analogo u co ntext, A state may exerci se its a uth o rity over activities of non -triba l mem bers on " lnd ian country" on ly ·' under certa in circumstances .... " New Mexico v. Mescalero Apache Trib e, 46 2 U.S. 324, 33 1, 103 S.Ct. 23 78. 76 L. Ed.2d 611 ( 1983). Whether the e rection and ma intenan ce of bi IIboa rds consti tutes such a circumstance requi res ··a pa rti c ular ized inquiry into the na ture o f the state, fede ral , and tribal interests at sta ke .'· Id at 333. I 03 .C t. 23 78 . ·'State j urisdiction is pre-empted by th e o perati o n of federa l law if it in terferes or is incompatible with federa l a nd tribal interests reflected in fede ra l law, unl ess the state interests at stake a re s uffi cient to ju st ify the a se11i o n of state autho ri ty." Id at 334 I 03 S.Ct. 2378. This "inquiry is to proceed in lig ht of trad itional notions of *982 Indi an sove re ign ty and the co ngre iona l goa l of Ind ian self-governm e nt in cl udin g its ·overrid ing goal' o f enco urag in g selfsufficiency and economic develo pment." Cal[fornia v. Cabazo n Band of Mission Indians, 4 80 U.S. 202 216, I 07 S.Ct. I 08 3. 94 L.Ed.2d 244 ( I 987) (quoting Mescalero, 462 U.S . at 334-35, I 03 S .Ct. 2378). Shivwits Band of Paiute Indians v Utah, 42 8 F3d 966. 98 1-82 [ I 0th Cir 2005] . In these circumstances, and o n the c urrent record, the co urt is of the vi ew that a pre lim inary injunction preventing the operatio n of the bi llboa rd . o r mo num ents, is unwarranted, that the plaintiffs wo uld suffer no irrepara ble harm in the abse nce of a pre liminary injunction, and that the equities do not ba lance in favo r of the defendants, prov ided defen dants have constructed and are operating the billboa rds in comp liance w ith appropriate structural and other safety standards . Accordingly, the p laint iffs ' motion is denied o n th e fore goi ng condition and without prejudice to reapplication in the eve nt that co nd ition is not met. [* 12] 12 of 13 INDEX NO. 610010/2019 FILED: SUFFOLK COUNTY CLERK 05/18/2020 04:39 PM NYSCEF DOC. NO. 176 RECEIVED NYSCEF: 05/18/2020 Commiss ioner State of ew York DOT, et al. v. Polite, et al. Index 0. 6100 10-20 19 Page 13 Finally, to the extent plain ti ffs seek the impos ition of contempt sancti ons upon the defendants, their appl ication is refi rred to a confer nee be fo re th cou rt to be co nducted on Jun e 1 2020 at noon, such conference to be co nducted vi rtua ll y. The court has consi dered the rem ainin g contentions o f the parties and find s that they do not require further or addi tional discu sion or alter any of the above determ inat ion . This constitutes the decisi on and order of the = Dated: ~~~ ~ ~~ May 18, 2020 HO ':""" SANFORD FIN AL DISPOSITION [* 13] XX EIL BERLA D, A.J.S.C. NON-FI NAL DI SPOSITIO 13 of 13

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