The opinion
Gesmer, J.
(dissenting). Because I believe that plaintiffs have stated a claim for mandamus relief sufficient to survive a motion to dismiss, I respectfully dissent.
Plaintiff Alliance to End Chickens as Kaporos, of which some individual plaintiffs are members, advocates for the substitution of coins, or other non-animal symbols of atonement, for chickens in the religious practice of Kaporos. 1 In this plenary action, plaintiffs seek to enjoin the performance of the religious ritual known as Kaporos to the extent that it is practiced with live chickens. As plaintiffs point out, other Orthodox Jewish communities use coins in place of live chickens, and plaintiffs do not oppose this practice.
As we must on a motion to dismiss, I accept the facts alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit into a cognizable legal theory (CPLR 3211; Leon v Martinez, 84 NY2d 83, 87-88 [1994]). I have also considered plaintiffs’ affidavits, which may be submitted on a motion to dismiss to remedy inartful pleading of potentially meritorious claims (id. at 88).
Plain tiffs claim that, for as many as four days before Yom Kippur, truckloads of crates overcrowded with live and some dead chickens are left on the streets of Brooklyn, with as many as 16 birds per crate, stacked up to 10 crates high. In the days before the birds are slaughtered, they remain crammed into *122 their cages, are not given food or water, are not protected from the elements or from feces and urine falling from the crates above, and sometimes fall out of the crates onto the public street. Birds are injured during the ritual, and their throats are frequently cut incorrectly, to the extent that the carotid artery is not completely severed and the birds die an unnecessarily slow and painful death. The slaughter takes place on public streets in makeshift open-air slaughterhouses, and dead and nearly dead birds, blood, excrement, used tarps and gloves, and other by-products of the slaughter are left on the street for days afterwards. This creates an unbearable stench and a health hazard both before and after the ritual. Children are present during, and sometimes assist in, the slaughter. Plaintiffs’ toxicology expert states in his affidavit that these conditions create a risk of public exposure to, and spreading of, Salmonella, Campylobacter, strains of influenza, and other pathogens, toxins, and biohazards, which can cause respiratory complications, dermatitis, and infectious diseases in humans. The non-City defendants do not seek or obtain required permits, and there is no oversight and no system for cleanup. At the time the matter was argued before the motion court, the non-City defendants had purchased 50,000 live chickens for the approaching holiday. Plaintiffs have complained repeatedly about the situation and obtained no meaningful response.
Plaintiffs seek mandamus relief against the City defendants, claiming that the City defendants have failed and refused to act on their complaints, and that the police actively assist the non-City defendants by blocking off streets and allowing practitioners to use Police Department generators, barricades, traffic cones, and “no parking” signs during the event.
Plaintiffs claim that, by their actions, the non-City defendants have violated, and the City defendants have failed to enforce and/or have “aided and abetted” the non-City defendants in violating, some 17 state and local statutes, regulations, and rules regarding the keeping and slaughter of animals, public health and safety, and animal cruelty, including provisions of the Agriculture and Markets Law, the Labor Law, the New York City Health Code, the Rules and Regulations of the New York City Department of Sanitation, and the rules of the New York City Street Activity Permit Office. They further allege that defendants have unreasonably interfered with the rights of plaintiffs and the public, and have caused a public nuisance. Plaintiffs seek a permanent injunction against the *123 non-City defendants to prevent them from erecting slaughterhouses and slaughtering chickens on public streets and sidewalks. Plaintiffs seek an order of mandamus against the City defendants, compelling them to
“uphold the law, properly issue summonses where warranted, properly issue violations where warranted, properly engage in arrests where warranted [in connection with] Kaporos . . .
“[and] preventing the . . . City Defendants from encouraging, assisting, and participating in . . . Kaporos . . . [and] from aiding and abetting the [non-City] Defendants to engage in illegal acts . . . and improperly blocking off specific streets and sidewalks.”
By order entered September 24, 2015, the motion court converted the plenary action as against the City defendants into a proceeding pursuant to article 78 of the Civil Practice Law and Rules, and granted the City defendants’ motion to dismiss it as against them. The motion court based its dismissal as against the City defendants on its finding that plaintiffs had failed to allege that any of the City defendants had ever tried to file a complaint with regard to a violation of the Agriculture and Markets Law or that the police ever refused to accept such a complaint. As discussed below, the record does not support this finding.
Section 7803 of the Civil Practice Law and Rules permits article 78 petitions in the nature of mandamus to determine “whether the body or officer failed to perform a duty enjoined upon it by law” (CPLR 7803 [1]). Mandamus lies “only to enforce a clear legal right where the public official has failed to perform a duty enjoined by law” (New York Civ. Liberties Union v State of New York, 4 NY3d 175, 184 [2005]). “[I]f a statutory directive is mandatory, not precatory, it is within the courts’ competence to ascertain whether an administrative agency has satisfied the duty that has been imposed on it by the Legislature and, if it has not, to direct that the agency proceed forthwith to do so” (Klostermann v Cuomo, 61 NY2d 525, 531 [1984]). It is the “function of mandamus to compel acts that officials are duty-bound to perform, regardless of whether they may exercise their discretion in doing so” (id. at 540). However, courts must not intrude into the “broad legislative and administrative policy beyond the scope of judicial correction” *124 (Jones v Beame, 45 NY2d 402, 408 [1978]). Accordingly, “rarely, if ever, should mandamus lie to command the Commissioner of Public Safety to enforce the Sunday ‘blue’ laws or the ordinance forbidding the riding of bicycles on the sidewalk” (id. at 409). Mandamus is not available to compel a general course of conduct by an official (Matter of Walsh v LaGuardia, 269 NY 437, 442 [1936]; New York Civ. Liberties Union, 4 NY3d at 184 ).
The motion court dismissed the proceeding as against the City defendants on two bases, both of which I conclude are faulty.
First, it found that the duties at issue are largely discretionary and not ministerial, and thus mandamus will not lie. However, where “the legislation in question established a standard of conduct which executive officers must meet unless or until the legislative body changes it, a dispute over compliance is generally considered justiciable because the courts can compel performance of the statutory command” (Matter of Natural Resources Defense Council v New York City Dept. of Sanitation, 83 NY2d 215, 220 [1994]). “The character of the duty, and not that of the body or officer, determines how far performance of the duty may be enforced by mandamus” (Klostermann, 61 NY2d at 540 ).
Here, the actions at issue are mandatory not discretionary. The Department of Health and Mental Hygiene (DOH) is required to enforce the Health Code (New York City Coalition to End Lead Poisoning v Koch, 138 Misc 2d 188, 191 [Sup Ct, NY County 1987], affd 139 AD2d 404 [1st Dept 1988]). Similarly, pursuant to section 435 (a) of the New York City Charter, the New York City Police Department “shall have the power and it shall be their duty” to, inter alia,
“disperse unlawful or dangerous assemblages and assemblages which obstruct the free passage of public streets, sidewalks, parks and places; . . . guard the public health, preserve order at . . . all public meetings and assemblages; subject to the provisions of law and the rules and regulations of the commissioner of traffic, regulate, direct, control and restrict the movement of vehicular and pedestrian traffic for the facilitation of traffic and the convenience of the public as well as the proper protection of human life and health; remove all nuisances in the public streets, parks and places; *125 . . . inspect and observe all places of public amusement . . . ; enforce and prevent the violation of all laws and ordinances in force in the city; and for these purposes to arrest all persons guilty of violating any law or ordinance for the suppression or punishment of crimes or offenses.”
In addition, Agriculture and Markets Law § 371 directs that a “police officer must . . . issue an appearance ticket pursuant to section 150.20 of the criminal procedure law, summon or arrest, and bring before a court or magistrate having jurisdiction, any person offending against any of the provisions of article twenty-six of the agriculture and markets law.” The mandatory nature of this provision is “a stark and surprising contrast to the permissive language found in the arrest provisions of the New York Criminal Procedure Law” (Jed L. Painter, 2016 Practice Commentaries, McKinney’s Cons Laws of NY, Book 2B, Agriculture and Markets Law § 371, Cum Pocket Part at 166). The article which the police are enjoined to enforce prohibits animal cruelty, including torture, unjustifiable injury, maiming, mutilating or killing of any animal, as well as depriving an animal of “necessary sustenance, food or drink,” or causing such treatment (Agriculture and Markets Law § 353). It further provides that such acts constitute a class A misdemeanor punishable by imprisonment for not more than one year, a fine of up to one thousand dollars, or both (Agriculture and Markets Law § 353; see also Penal Law §§ 60.01 [3] [c]; 70.15, 80.05). While the majority is correct that section 350 of the Agriculture and Markets Law defines animal cruelty as the infliction of “unjustifiable” pain, suffering or death (Agriculture and Markets Law § 350 [2]), it is not at all clear that the alleged treatment of poultry in the days leading up to Kaporos, or in improper slaughter, is justifiable. None of the defendants has claimed that violating the Agriculture and Markets Law, or any of the other laws plaintiffs claim the non-City defendants have violated, is necessary to carry out the religious ritual and thus justifiable. In addition, plaintiffs have raised questions about whether the slaughtered birds are donated for human consumption as the non-City defendants claim, and, if so, whether the proper precautions are being taken to ensure consuming them is safe, each of which also bears on whether the cruelty alleged is justifiable.
Thus, while the City defendants may exercise discretion in the process of determining whether a violation has occurred *126 and, if so, how to respond to it, they have, at a minimum, an obligation to determine whether or not a reported violation has occurred. Pursuant to section 371 of the Agriculture and Markets Law, if the police determine that they have probable cause to believe that a violation of article 26 of the Agriculture and Markets Law has occurred, they “must” issue an appearance ticket or summons or make an arrest.
Second, the motion court incorrectly found that plaintiffs had not shown that any of them had tried to file a complaint with regard to violations under the Agriculture and Markets Law. The motion court found that plaintiffs’ failure to do so distinguished this case from Matter of Jurnove v Lawrence ( 38 AD3d 895 [2d Dept 2007]), in which the Second Department held that the petitioners had stated a mandamus cause of action where they asserted that the local police failed and refused to accept their complaints alleging violations of article 26 of the Agriculture and Markets Law.
This was error for two reasons. First, plaintiffs Rina Deych, Lisa Renz, and Steven and Vanessa Dawson submit affidavits in which they describe instances when they approached police officers personally or called the DOH, 911, and/or 311 to report animal cruelty and/or conditions posing a public health hazard, and when they participated in or observed protests concerning Kaporos in the presence of the police. In each instance described, their action led to no meaningful action by the police to address the violations of the Agriculture and Markets Law or by the DOH to respond to complaints of hazardous conditions.
Second, the City defendants do not claim that they have ever made a determination that the acts reported do not constitute violations of the statutes, regulations and rules cited by plaintiffs, including article 26 of the Agriculture and Markets Law. I disagree with the majority that plaintiffs seek to direct the City defendants how to act. The complaint seeks to compel them to issue summonses or make arrests “where warranted,” and to refrain from “aiding and abetting” the non-City defendants in violating the law. I view the complaint as seeking to compel the City defendants not to abdicate their mandatory duty.
Indeed, at least one plaintiff alleges that two police officers admitted to being “horrified” by what they saw when they arrived in response to her call, and that they were unaware of their obligation to enforce the Agriculture and Markets Law *127 before she showed them the relevant sections. Nevertheless, she was told by the officers that they had “orders from on high not to disturb practitioners” of Kaporos. Other plaintiffs allege that their complaints to the police, the DOH, and/or 311 were not addressed at all. One plaintiff claims that the DOH did not investigate the area in response to her complaint until two months after Kaporos had ended. Unsurprisingly, they found no evidence of the blood, fecal matter, used gloves and feathers she had reported being on the street. In my view, these claims are sufficient to withstand a motion to dismiss plaintiffs’ mandamus claim. If, as plaintiffs allege, the City defendants have made a policy decision to take no action against Kaporos practiced with chickens on the public streets, without even an investigation, this would appear to be an abdication, rather than, as the majority states, a “proper exercise” of the City defendants’ obligations. Moreover, if, as plaintiffs allege, the City defendants are assisting the non-City defendants to violate the law, their provision of supplies and assistance with street closures would not appear to be a proper exercise of discretion. 2
The portion of plaintiffs’ complaint that seeks to compel the City defendants to “uphold the law” seeks to compel a general course of conduct, for which mandamus relief is not available. Accordingly, I agree that that portion of the complaint should be dismissed (Walsh, 269 NY at 442 ; New York Civ. Liberties Union, 4 NY3d at 184). However, “to the extent that plaintiffs can establish that defendants are not satisfying nondiscretion-ary obligations to perform certain functions, they are entitled to orders directing defendants to discharge those duties” (Klostermann, 61 NY2d at 541 ; see also Matter of Jurnove v Lawrence, 38 AD3d 895 [2007]). Since, in my view, plaintiffs have established, at a minimum, that the police have a mandatory duty under the Agriculture and Markets Law, that portion of their complaint seeking an order compelling them to “issue summonses where warranted, . . . issue violations where warranted [and] properly engage in arrests where warranted” should not be subject to dismissal on this motion. Plaintiffs’ allegation that the City defendants “encourag[e], assist [ ], and participare]” in the non-City defendants’ violation of the speci- *128 fled laws and regulations is essentially an allegation that they have abdicated their duty to the point that they actively undermine a law they are mandated to enforce. Therefore, this is also an appropriate subject of mandamus relief (see Matter of Jurnove, 38 AD3d at 896 ). 3 Accordingly, I would vote to reverse the dismissal of plaintiffs’ mandamus cause of action against the City defendants, except to the extent that plaintiffs seek to compel the City defendants to “uphold the law” as a general matter.
In reaching this conclusion, I intimate no view as to the merits of plaintiffs’ claims but I would permit them to proceed with discovery and a determination on the merits. Furthermore, I am by no means taking lightly the constitutional issues implicated by governmental involvement in religious activities. Plaintiffs’ claims are all predicated on their allegations that the challenged acts take place in public places, on public streets and sidewalks, not within the confines of a religious institution or on its grounds (cf. Church of Lukumi Babalu Aye, Inc. v Hialeah, 508 US 520 [1993] [invalidating laws which barred religious practice of animal sacrifice, even if practiced in private]). It appears that a court could grant the relief that plaintiffs seek without infringing on religious freedom.
Moskowitz and Feinman, JJ., concur with Gische, J.; An-drias, J.P. and Gesmer, J., dissent in an opinion by Gesmer, J.
Order, Supreme Court, New York County, entered September 24, 2015, affirmed, without costs.
. Because the motion court converted the claims against the City defendants into a CPLR article 78 proceeding, the City defendants are denominated respondents, and the plaintiffs are denominated petitioners in that part of this matter. For simplicity, they are referred to as defendants and plaintiffs throughout this opinion.
. For example, plaintiffs allege that the City defendants “aid and abet” the non-City defendants’ violation of Administrative Code of the City of New York § 18-112 (d), which prohibits the erection of slaughterhouses “or any other . . . calling, which may be in anywise dangerous, obnoxious or offensive to the neighboring inhabitants” along Eastern Parkway or streets intersecting Eastern Parkway.
. I would also find that plaintiffs have a right to the relief they seek. The City defendants rely mainly on their argument that plaintiffs have failed to show a mandatory duty, and do not focus on whether plaintiffs have a legal right to the relief they seek. Plaintiffs clearly have a right to the relief they seek in the same sense that the petitioner National Resources Defense Council had a right to seek compliance with a local law requiring the Department of Sanitation to establish a recycling program in Matter of Natural Resources Defense Council v New York City Dept. of Sanitation ( 83 NY2d 215 [1994]) and petitioner citizens had a right to have their complaints of animal cruelty responded to by police in Matter of Jurnove v Lawrence ( 38 AD3d 895 [2007]).