Opinion
February 10, 1999
Appeal from Order of Supreme Court, Niagara County, Koshian, J. — Dismiss Pleading.
Present — Hayes, J. P., Wisner, Pigott, Jr., Callahan and Balio, JJ.
Order unanimously affirmed without costs. Memorandum: Plaintiff had been providing electrical service to the reservation of the Tuscarora Indian Nation (Indian Nation) pursuant to a 1937 franchise agreement. The agreement was declared null and void by the Bureau of Indian Affairs, and that determination was upheld on appeal to the Interior Board of Indian Appeals. In 1993 the Indian Nation determined that plaintiff could provide new or updated electrical service only with the permission of the Indian Nation. Although plaintiff obtained the consent of the Indian Nation to update the electrical service at an elementary school located on the reservation, workers were prevented from performing that task by demonstrations engaged in by persons who had been unable to obtain electrical service to their homes on the reservation. In an action commenced by plaintiff alleging interference with contractual relations, Ronald Billings (defendant) asserted a counterclaim alleging that plaintiff was violating Public Service Law §§ 31 Pub. Serv. and 65 Pub. Serv. (3) by failing to provide electrical service in a nondiscriminatory fashion. Three other residents, Galen Fischer, Deanna Patterson and Percy Patterson, moved to intervene to assert similar claims.
We agree with plaintiff that the failure to join the Indian Nation as a party requires dismissal of the counterclaim and denial of the motion to intervene. "Because resolution of this controversy involves a determination of the rights and powers of the Indian Nation to consent to [electrical] service on its reservation, complete relief cannot be accorded [defendant and intervenors] without the Indian Nation as a party. Furthermore, because a judgment in [defendant's and intervenors'] favor would challenge the power of the Indian Nation, the Indian Nation might be `inequitably affected' by this litigation" ( Anderson v. Town of Lewiston, 244 A.D.2d 965, 966, appeal dismissed 91 N.Y.2d 920, citing City of New York v. Long Is. Airports Limousine Serv. Corp., 48 N.Y.2d 469, 475-476). In view of our determination, it is unnecessary to reach the remaining issues.