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Matter of People v. Maytag

Appellate Division of the Supreme Court of New York, Third Department
Apr 4, 1991
172 A.D.2d 899 (N.Y. App. Div. 1991)

Opinion

April 4, 1991

Appeal from the Supreme Court, Clinton County (Plumadore, J.).


Petitioner brought this proceeding pursuant to Executive Law § 63 (12) to permanently enjoin respondents and others from conducting or participating in high stakes bingo games on the Ganienkeh Indian Territory in Clinton County, alleging that these games are not in accord with State laws. The Ganienkeh Territory is owned by the State and leased to the Turtle Island Trust for the benefit of the Indians residing there. Supreme Court authorized an alternative method of service of the petition upon respondents Paul Delaronde and Louie Hall (hereinafter collectively referred to as respondents), permitting petitioner to serve a copy at their last known Post Office addresses and to affix another copy to the fence located at the main entrance to the Turtle Island Trust property. Respondents filed a verified answer and moved to dismiss on the grounds, inter alia, that under the doctrine of sovereign immunity, Supreme Court lacked subject matter jurisdiction.

Supreme Court ruled that California v. Cabazon Band of Mission Indians ( 480 U.S. 202) was controlling and that the State would be precluded from asserting its regulatory authority to prohibit the bingo games if the Ganienkeh Territory was found to be "Indian Country" within the meaning of 18 U.S.C. § 1151. Supreme Court ordered a hearing on the issue. Respondents appeal the denial of their motion to dismiss for lack of personal jurisdiction and also assert that the court should not proceed in the absence of persons sought to be enjoined who have not been served with process. Petitioner cross-appeals, challenging the limited scope of the judicial hearing.

Initially, so much of the order as directs a judicial hearing to aid in the disposition of respondents' motion to dismiss does not affect a substantial right (see, CPLR 5701 [a] [2] [v]) and, thus, is nonappealable as of right (see, State of New York v. Berchier, 124 A.D.2d 333, 334; Bagdy v. Progresso Foods Corp., 86 A.D.2d 589). Moreover, although focusing on the issue of whether the subject parcel was "Indian Country", Supreme Court did not restrict petitioner from raising "relevant" legal arguments at the hearing, including those relating to the Indian Gaming Regulatory Act of 1988 ( 25 U.S.C. § 2701 et seq.). These issues, including the question of preemption of State regulation (see, State of New York v. Princess Prestige Co., 42 N.Y.2d 104, 107; S Rep No. 100-466, 100th Cong, 2d Sess, Aug. 3, 1988, at 6; see also, People v. Anderson, 137 A.D.2d 259, 267-268; People v Snyder, 141 Misc.2d 444, 448-450) should be addressed by the parties and taken up by Supreme Court in the first instance. Accordingly, we agree with respondents that petitioner's appeal should be dismissed.

We also reject respondents' arguments relating to personal jurisdiction and the failure to join necessary parties. In these circumstances, Supreme Court was fully justified in authorizing an alternative method of service, and the designated method did comport with the requirements of due process. Finally, Supreme Court properly denied respondents' motion to dismiss pursuant to CPLR 3211 (a) (10) for failure to join necessary parties.

Petitioner's cross appeal dismissed, without costs.

Order affirmed, without costs. Casey, J.P., Mikoll, Yesawich, Jr., Mercure and Crew III, JJ., concur.


Summaries of

Matter of People v. Maytag

Appellate Division of the Supreme Court of New York, Third Department
Apr 4, 1991
172 A.D.2d 899 (N.Y. App. Div. 1991)
Case details for

Matter of People v. Maytag

Case Details

Full title:In the Matter of THE PEOPLE OF THE STATE OF NEW YORK, by ROBERT ABRAMS, as…

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

Date published: Apr 4, 1991

Citations

172 A.D.2d 899 (N.Y. App. Div. 1991)
568 N.Y.S.2d 192