A recent decision from the Appellate Division of the Supreme Court of New York reminds that one should never take for granted any procedural matter and, in particular, standing to sue.

In Clean Water Advocates of New York, Inc. v. NY State Dept. of Environmental Conservation, No. 514924 (Feb. 21, 2013), plaintiffs brought suit seeking to challenge the approval of a stormwater pollution preservation plan submitted by Wal-Mart Stores, Inc. in connection with the construction of a superstore in Lockport, Niagra County.  To establish standing, Plaintiff, a not-for-profit corporation, submitted an affidavit of only one member, who stated that she lived within 900 feet of the proposed Wal-Mart location, and up to 22 miles from the waters which Plaintiff alleged would be affected.  Evidently, she did not, however, allege any particular harm that she would suffer, nor did Plaintiff allege any harm that any of its members would suffer that was in any manner different from harm that might be suffered by the public at large.  This was, needless to say, a mistake.

Under New York law, a plaintiff must show both an “injury-in-fact” and that the alleged injury falls within “the zone of interests or concerns sought to be promoted or protected by the statutory provision under which the agency has acted.” New York State Assn. of Nurse Anesthetists, 2 NY3d at 211). An “injury-in-fact” means that the plaintiff, or in the case of an organization, at least one of its members, will suffer actual injury that is personal to the plaintiff and not mere conjecture.  With little discussion, but plenty of legal citation, the Court in Clean Water Advocatesmade clear that standing was not a mere formality, and without real evidence meeting the criteria, dismissal of the claim was proper.

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