               SUPREME COURT OF THE STATE OF NEW YORK
                  Appellate Division, Fourth Judicial Department

719
CA 12-00053
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, CARNI, AND LINDLEY, JJ.


JAKE K. HILL, PLAINTIFF-APPELLANT,

                    V                                     MEMORANDUM AND ORDER

SENECA NATION OF INDIANS, ET AL., DEFENDANTS,
AND SENECA CONCRETE AND PAVING CO., LLC,
DEFENDANT-RESPONDENT.


BOUVIER PARTNERSHIP, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, BUFFALO (JOHANNA M.
HEALY OF COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Kevin M.
Dillon, J.), entered April 6, 2011 in a personal injury action. The
order, insofar as appealed from, granted that part of the motion of
defendant Seneca Concrete and Paving Co., LLC seeking dismissal of
plaintiff’s second and third causes of action.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs, the motion of
defendant-respondent is denied in part and the second and third causes
of action against it are reinstated.

     Memorandum: Plaintiff commenced this action to recover damages
for injuries he sustained while working on a construction project on
property owned by defendant Seneca Nation of Indians (Seneca Nation).
The injury occurred when a trench in which plaintiff was working
collapsed on him. Plaintiff was employed by a contractor hired by the
general contractor, defendant-respondent (defendant), a New York
corporation. Supreme Court granted defendant’s pre-answer motion to
dismiss the complaint against it insofar as it asserted causes of
action for breach of contract and the violation of Labor Law §§ 200,
240 (1) and § 241 (6), i.e., the first through third and fifth causes
of action. Plaintiff conceded that his section 240 (1) cause of
action should be dismissed and, as limited by his brief, he contends
on appeal only that the court erred in granting the motion with
respect to the causes of action under sections 200 and 241 (6), thus
abandoning the breach of contract cause of action (see Ciesinski v
Town of Aurora, 202 AD2d 984, 984). Plaintiff contends that
defendant, a non-Indian entity, “cannot avoid [its] obligations under
New York law by hiding behind tribal sovereignty,” while defendant
contends that tribal law rather than New York law applies because the
accident occurred on the Seneca Nation’s sovereign land, and tribal
                                 -2-                           719
                                                         CA 12-00053

law does not provide for vicarious liability for property owners and
general contractors. We agree with plaintiff.

     This appeal is governed by our decisions in Karcz v Klewin Bldg.
Co., Inc. (85 AD3d 1649) and John v Klewin Bldg. Co., Inc. (94 AD3d
1502), both of which were issued after the court granted defendant’s
motion. In Karcz, we rejected the defendants’ contention that tribal
law rather than New York law applied to a Labor Law action arising
from a construction accident that occurred on land owned by the Seneca
Nation. We held that, because “the locus of the alleged [malfeasance]
is the Seneca Nation’s sole connection to this action,” that
connection was “merely tangential,” and thus Supreme Court “did not
violate the Seneca Nation’s right to self-government by exercising
jurisdiction over th[e] dispute” (id. at 1650).

     Defendant contends on appeal that Karcz is distinguishable
because, unlike in this case, the injured plaintiff was not a Native
American. In John, however, the plaintiff was in fact a member of the
Seneca Nation, and we held that Karcz applied, thereby establishing
that the plaintiff’s status as a Native American is not dispositive of
the issue before us. None of defendant’s remaining contentions leads
us to conclude that tribal law, rather than New York law, should apply
to this case.




Entered:   June 15, 2012                        Frances E. Cafarell
                                                Clerk of the Court
