                          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 force-
fed 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 force-
fed 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
