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

Order, Supreme Court, New York County (Marilyn Shafer, J.), entered September 16, 2009, which granted the petition to compel respondents to comply with their obligation under the City Animal Shelters and Sterilization Act (Administrative Code of City of NY § 17-801 et seq.) to provide full-service animal shelters in all five boroughs, unanimously reversed, on the law, without costs, the petition denied and the proceeding brought pursuant to CPLR article 78 dismissed for lack of standing. Petitioner asserts that respondents’ failure to provide full-service shelters as required by Administrative Code § 17-803 522 “impermissibly overburdens the . . . animal rescue and foster organizations of New York City,” such as itself, which provide the otherwise unavailable services at extra cost to themselves. As the primary purpose of the Act is to protect the public health by addressing the overpopulation of “unwanted dogs and cats” (Administrative Code § 17-801), and not to alleviate the burdens voluntarily assumed by animal rescue organizations, petitioner’s asserted injury does not constitute “injury in fact” that falls within the “zone of interests or concerns sought to be promoted or protected by” the Animal Shelters and Sterilization Act (see New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d 207, 211 [2004]). Nor does this case involve exceptional circumstances that would warrant a finding of standing, such as a class of individuals who have suffered injuries the Act is intended to guard against and cannot seek relief on their own behalf (see e.g. Mixon v Grinker, 157 AD2d 423 [1990]; Grant v Cuomo, 130 AD2d 154 [1987], affd 73 NY2d 820 [1988]; see also Henry v Isaac, 228 AD2d 558 [1996]). Concur—Saxe, J.P., Friedman, Acosta, DeGrasse and Richter, JJ. [Prior Case History: 25 Misc 3d 1214(A), 2009 NY Slip Op 52092(U).]