State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 17, 2014 517940 

________________________________

In the Matter of ANIMAL

LEGAL DEFENSE FUND, INC., 

et al.,

Appellants,

v

MEMORANDUM AND ORDER

DARREL J. AUBERTINE, as

Commissioner of Agriculture 

and Markets, et al.,

Respondents,

et al.,

Respondent.

________________________________

Calendar Date: May 27, 2014

Before: Lahtinen, J.P., McCarthy, Garry, Lynch and Clark, JJ.

__________

The Vincelette Law Firm, Albany (Elizabeth Hallinan, Animal

Legal Defense Fund, Cotati, California, pro hac vice, of

counsel), for appellants.

Eric T. Schneiderman, Attorney General, Albany (Andrew B.

Ayers of counsel), for Darrel J. Aubertine and another,

respondents.

David Lenefsky, New York City, for HVFH, LLC, respondent.

__________

Lahtinen, J.P.

Appeal from a judgment of the Supreme Court (McGrath, J.),

entered January 31, 2013 in Albany County, which, in a combined

proceeding pursuant to CPLR article 78 and action for declaratory

judgment, granted certain respondents' motions to dismiss the
-2- 517940 

petition/complaint.

The predominant method of producing the food known as foie

gras is to force feed ducks or geese so as to enlarge their

livers (see Matter of Humane Socy. of U.S., Inc. v Brennan, 63

AD3d 1419, 1419 n 1 [2009]). Petitioners contend that the force

feeding procedure causes the animals to be diseased and the food

product from them to be adulterated (see Agriculture and Markets

Law § 200). Petitioner Animal Legal Defense Fund, Inc.

(hereinafter ALDF) is a non-profit California corporation that

advocates for the protection of animals, and petitioner Daniel

Stahlie is a New York resident who occasionally consumes foie

gras, but is allegedly concerned that foie gras from force-fed

animals increases the risk that he will develop a medical

condition known as secondary amyloidosis. This combined CPLR

article 78 proceeding and declaratory judgment action was

commenced against respondents Commissioner of Agriculture and

Markets and the Department of Agriculture and Markets

(hereinafter collectively referred to as the state respondents),

as well as New York corporations that produce foie gras. 

Petitioners seek, among other things, a declaration that forcefed foie gras1 is an adulterated food product and an order

prohibiting the state respondents from allowing foie gras into

the human food supply. Pre-answer motions to dismiss asserted,

among other things, that petitioners lacked standing. Supreme

Court granted dismissal upon such ground and petitioners appeal.

Standing "requir[es] that the litigant have something truly

at stake in a genuine controversy" (Saratoga County Chamber of

Commerce v Pataki, 100 NY2d 801, 812 [2003], cert denied 540 US

1017 [2003]). Petitioners have "the burden of establishing both

an injury in fact and that the asserted injury is within the zone

of interests sought to be protected by the statute alleged to

have been violated" (Matter of Association for a Better Long Is.,

Inc. v New York State Dept. of Envtl. Conservation, 23 NY3d 1,

___, 2014 NY Slip Op 02216, *3 [2014]; see Society of Plastics

1 Since petitioners are challenging only force-fed foie

gras, all subsequent references herein to foie gras are to forcefed foie gras.
-3- 517940 

Indus. v County of Suffolk, 77 NY2d 761, 772-773 [1991]). The

injury in fact element must be based on more than conjecture or

speculation (see New York State Assn. of Nurse Anesthetists v

Novello, 2 NY3d 207, 211 [2004]; Matter of Clean Water Advocates

of N.Y., Inc. v New York State Dept. of Envtl. Conservation, 103

AD3d 1006, 1008 [2013], lv denied 21 NY3d 862 [2013]). 

Petitioners contend that Stahlie has standing based upon

allegations that he occasionally eats foie gras at parties and

other events and that this may increase his risk of developing

secondary amyloidosis. They rely primarily upon Baur v Veneman

(352 F3d 625 [2d Cir 2003]) as authority for standing to compel

government action when a consumer faces an enhanced risk of

injury from exposure to a potentially unsafe product. Although

the Second Circuit found standing in Baur, it cautioned about

"the potentially expansive and nebulous nature of enhanced risk

claims" and reiterated that "the injury-in-fact analysis is

highly case-specific" (id. at 637). "[I]njury based on exposure

to potentially or actually harmful products can take at least two

forms: (1) 'uncontested exposure to a potentially harmful

substance' . . . and (2) 'potential exposure to an undisputedly

dangerous contaminant'" (Natural Resources Defense Council, Inc.

v United States Food & Drug Admin., 710 F3d 71, 83 [2d Cir 2013],

quoting Baur v Veneman, 352 F3d at 634 n 8). 

Baur was an example of the second form of enhanced risk

standing as it involved a disease ("mad cow disease") that was

undisputedly very serious in that it had already caused many

human fatalities. The alleged exposure was not as clear since it

came from a narrow aspect of the industry (i.e., meat from downed

cows) and no deaths had occurred yet in this country. In that

case, "critical factors" in finding standing also included that

the government was being challenged for inactivity in an area

where it had issued "studies and statements confirm[ing] several

of [the plaintiff's] key allegations" and the plaintiff's "risk

of harm [arose] from an established government policy" (Baur v

Veneman, 352 F3d at 637; see State of New York v United States

Army Corps of Engineers, 896 F Supp 2d 180, 193 [ED NY 2012]). 

A case finding the first form of enhanced risk standing is

Natural Resources Defense Council, Inc. v United States Food &
-4- 517940 

Drug Admin. (supra [hereinafter referred to as NRDC]). NRDC

involved frequent exposure at work – up to 50 times per day – to

a cleaning product that allegedly posed a health risk (id. at

81). Although the extent of the risk in NRDC was still a subject

being studied, there was "no genuine dispute that [the product

was] potentially harmful" (id.). Similar to Baur, the Food and

Drug Administration itself had issued a consumer notice (see id.

at 78) and had acknowledged "valid concerns" about use of the

cleaning product as well as its potential long-term serious

health effects (id. at 78, 82). Succinctly stated, in Baur, the

risk of exposure was uncertain but the harm was clear and

significant, whereas in NRDC, the exposure was manifest and

substantial but the harm – while potentially serious – was not

yet certain (id. at 83). 

Here, the risk of exposure is minimal and the indication of

harm uncertain. Although petitioners included expert opinion

indicating a possible risk of secondary amyloidosis from foie

gras for some individuals with certain medical conditions, they

cite no situation of any person ever suffering secondary

amyloidosis that was linked to foie gras. Stahlie does not

contend that he has any of the underlying medical conditions that

may be related to an increased risk of secondary amyloidosis. 

His exposure to foie gras is infrequent. There are no studies,

statements or warnings by the regulating agency or other

pertinent governmental entity regarding a relevant risk related

to the occasional consumption of foie gras. Stahlie has, at

best, occasional exposure to a product that has not yet been

connected by any actual case to the purported risk of harm

alleged by petitioners. We agree with Supreme Court that, even

affording petitioners the benefit of every favorable inference,

their allegations regarding an injury in fact to Stahlie are

speculative and rest upon conjecture. 

Next, petitioners argue that ALDF's use of its resources to

investigate and litigate the alleged conduct of the state

respondents establishes standing for ALDF. We are unpersuaded.

Standing has been recognized in a narrow line of cases where an

organization that helps a particular group of people must expend

funds and divert organization resources because of conduct that

directly interferes with the services that the organization
-5- 517940 

provides to its clients (see e.g. Havens Realty Corp. v Coleman,

455 US 363 [1982] [persons seeking affordable housing]; Mixon v

Grinker, 157 AD2d 423 [1990] [HIV-infected homeless persons]). 

Here, ALDF brought the litigation and it is expending funds in a

manner consistent with its stated core mission of using the legal

system to advance its policy regarding animal cruelty. Finding

standing under the situation presented here would essentially

eliminate the standing requirement any time an advocacy

organization used its resources to challenge government action or

inaction (cf. Nnebe v Daus, 644 F3d 147, 157-158 [2d Cir 2011];

Matter of Stray from the Heart, Inc. v Department of Health &

Mental Hygiene of the City of N.Y., 83 AD3d 521, 522 [2011], affd

20 NY3d 946 [2012]; Henry v Isaac, 228 AD2d 558, 559 [1996]). 

Stahlie has not established that he has citizen taxpayer

standing pursuant to State Finance Law § 123-b. The statute is

narrowly construed and "[c]laims which seek review of a [s]tate

actor's alleged mismanagement of funds or the arbitrary and

capricious distribution of funds lawfully allocated to an agency

are not covered" (Matter of Transactive Corp. v New York State

Dept. of Social Servs., 92 NY2d 579, 589 [1998]; see Empire State

Ch. of Associated Bldrs. & Contrs., Inc. v Smith, 21 NY3d 309,

323 [2013]). While petitioners question the wisdom of the state

respondents' decision not to declare foie gras an adulterated

product, the state respondents had authority to make such a

decision and did not illegally expend funds in doing so. 

Petitioners "have not alleged 'a sufficient nexus to fiscal

activities of the [s]tate to allow for [State Finance Law §] 123-

b standing'" (Empire State Ch. of Associated Bldrs. & Contrs.,

Inc. v Smith, 21 NY3d at 323, quoting Rudder v Pataki, 93 NY2d

273, 281 [1999]). 

The remaining arguments, to the extent properly preserved,

have been considered and are without merit.

McCarthy, Garry, Lynch and Clark, JJ., concur.
-6- 517940 

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court