Burden v. American Society for the Prevention of Cruelty to Animals, Inc.

44 A.D.2d 518, 353 N.Y.S.2d 20, 1974 N.Y. App. Div. LEXIS 5507

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 12, 1974
• Status: Published

Opinion

Judgment, Supreme Court, New York County, entered September 10, 1973, dismissing petition, unanimously affirmed' as a matter of discretion, without costs and without disbursements, and without prejudice to the pending companion plenary action in equity in the Supreme Court, New York County, for an injunction. The fact that petitioner White may have been familiar with the general position of the various people and groups with whom petitioners are. associated, did not necessarily give her standing to bring a proceeding until such time as she was specifically affected by the refusal of the respondent to pick up her cat without charging a fee. (United States v. SCRAP, 412 U. S. 669; Roe v. Wade, 410 U. S. 113, rehearing den. 410 U. S. 959; Sierra Club v. Morton, 405 U. S. 727; Sidley v. Rockefeller, 28 N Y 2d 439; Matter of Posner v. Rockefeller, 26 N Y 2d 970; St. Clair v. Yonkers Raceway, 13 N Y 2d 72.) Therefore, the four months provision of CPLR 217 did not become applicable until that point, and as to that petitioner, this proceeding is timely. However, in view of the pending plenary action, as a matter of discretion, it would be preferable that the issue of the interpretation of section 8 of chapter 115 of the Laws of 1894 with respect to the American Society for the Prevention of Cruelty to Animals and the fees it may charge, be determined on the merits in that action. Concur — Markewich, J. P., Kupferman, Tilzer and Moore, JJ.