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N.B. §22 of New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL typically follows this protocol.

NYPPL's most recent posting is set out below.

March 15, 2010

New York’s Administrative Procedures Act does not require a State agency to issue a declaratory ruling when requested

New York’s Administrative Procedures Act does not require a State agency to issue a declaratory ruling when requested
Matter of Humane Society of United States, Inc. v Brennan, 63 AD3d 1419

The genesis of this lawsuit was the New York State’s Department of Agriculture and Markets' declining to issue a declaration that foie gras* is an adulterated food product within the meaning of Agriculture and Markets Law §200. The Humane Society of the United States** and various other organizations and individuals generally opposed to the production of foie gras then initiated an CPLR Article 78 action seeking a court order compelling the Commissioner to issue the requested declaration or, in the alternative, a review of his determination not to issue such declaration.

§204 of the State Administrative Procedure Act provides that, when petitioned to issue a declaratory ruling, an agency must either issue the ruling or issue a statement declining to issue such ruling. However, said the Appellate Division, “There is no requirement that the agency issue a declaratory ruling when requested and a petitioner has no rights under the statute other than a timely response by the agency.”***

* Foie gras is a food product derived from the intentionally enlarged livers of ducks and geese. The livers are typically enlarged by force-feeding the birds for approximately two weeks before their slaughter.

** There was a procedural matter involved as well – did the petitioners have standing to maintain this action? The Appellate Division held that “Supreme Court properly granted [the [Commissioner’s] motion to dismiss the petition based on petitioners' lack of standing.”

*** The Appellate Division noted that the Department's regulations provide that "[t]he issuance of a declaratory ruling shall be wholly within the discretion of the commissioner." (see 1 NYCRR 368.1 [c]).

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Text prepared by Harvey Randall except as otherwise noted. Randall, former Principal Attorney, New York State Department of Civil Service, also served as Director of Personnel for the State University System; as Director of Research, Governor’s Office of Employee Relations; and as Staff Judge Advocate General, New York Guard. He has an MPA from the Maxwell School, Syracuse University and a J.D. from Albany Law School.