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(Cite as: 765 N.Y.S.2d 403)

Supreme Court, Appellate Division, Fourth Department, New York.


Grace ZETH, Plaintiff-Respondent,

v.

Freddie JOHNSON, Defendant-Appellant.


Oct. 2, 2003.



Tribal member was immune from suit for damages for injuries sustained by driver of vehicle stuck by tribe-owned snowplow operated by tribal member in the course of his employment by tribe.

*403 Sliwa & Lane, Buffalo (Adam C. Ferrandino of Counsel), for Defendant-Appellant.


Dwyer, Black & Lyle, P.C., Olean (Ethan M. Lyle of Counsel), for Plaintiff- Respondent.


PRESENT: PIGOTT, JR., P.J., GREEN, SCUDDER, GORSKI, and HAYES, JJ.


MEMORANDUM:


Plaintiff commenced this action seeking damages for injuries she sustained *404 when a snowplow operated by defendant and owned by the Seneca Nation struck the vehicle she was driving. Defendant is a member of the Mohawk Nation who resides on the Seneca Nation Reservation and it is undisputed that, at the time of the accident, he was operating the snowplow on behalf of the Seneca Nation in the course of his employment. Supreme Court erred in denying defendant's motion to dismiss the complaint. "It is fundamental that Indian tribes possess sovereign immunity from suit in state and Federal courts" ( Doe v. Oneida Indian Nation of N.Y., 278 A.D.2d 564, 564, 717 N.Y.S.2d 417, lv. denied 96 N.Y.2d 716, 730 N.Y.S.2d 790, 756 N.E.2d 78; see Matter of Ransom v. St. Regis Mohawk Educ. & Community Fund, 86 N.Y.2d 553, 558-559, 635 N.Y.S.2d 116, 658 N.E.2d 989). "The doctrine of tribal immunity 'extends to individual tribal officials acting in their representative capacity and within the scope of their authority' " ( Romanella v. Hayward, 933 F.Supp. 163, 167, affd. 114 F.3d 15). "[T]ribe members, even officials, are amenable to suit if the subject of the suit is not related to the officials' performance of official duties" ( id. ). Here, defendant was performing his official duties and was acting in the scope of his authority at the time of the accident, and thus defendant is entitled to the sovereign immunity of the Seneca Nation ( see id. at 167- 168).


It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the complaint is dismissed.



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