Marcus v. Jewish National Fund (Keren Kayemeth Leisrael), Inc.

Kupferman, J. P. (dissenting).

I would modify and dismiss the complaint in its entirety.

The defendant, Jewish National Fund (Keren Kayemeth Leisrael), Inc. (JNF), is an American charity devoted to the afforestation, reclamation and development of the State of Israel. It was founded in 1901 and is an eleemosynary institution governed by the New York State Not-for-Profit Corporation Law and section 501 (c) (3) of the United States Internal Revenue Code (26 USC § 501 [c] [3]), which provides for tax exempt treatment. It is affiliated with, but separate from, an Israeli organization known as Keren Kayemeth Leisrael, which translates into English as the Jewish National Fund.

JNF concedes that its policy is to allocate its charitable funds to works within Israel’s pre-1967 borders. The plaintiff contends that JNF deceives the public by indicating that it allocates funds over the so-called Green Line. The area beyond the Green Line is basically the West Bank and the Gaza Strip.

Among other things, the complaint alleges common-law fraud, misrepresentation, and false advertising under General Business Law §§ 349 and 350.

The IAS court dismissed the first, second, fifth and sixth causes of action. It also restrained the defendant, pendente lite, from distributing any material depicting a map of Israel showing territories beyond the Green Line. This injunction was subsequently modified, based on the defendant’s concession that it would include a disclaimer in its solicitations making it clear, without conceding the truth of the plaintiff’s contentions, that funds contributed to the JNF of America would be used for projects only within the Green Line.

With respect to the third cause of action, the Attorney-*108General of the State of New York is empowered to protect the public in the event there is any deception by a charitable group. (State of New York v Francis, 95 Misc 2d 381 [Kassal, J.], affd for reasons stated 67 AD2d 640.) The plaintiffs cannot, as private attorneys general, engage in an enforcement venture except pursuant to General Business Law § 349 (h), and, in any event, a private person’s right of action is no greater than the Attorney-General’s. Section 349 (a), which declares unlawful deceptive acts "in the conduct of any business, trade or commerce”, does not seem to apply to the charitable solicitation here involved. (See, Matter of Lefkowitz v Burden, 22 AD2d 881.) Moreover, the defendant has no obligation to use its funds other than in accordance with its charter. There is no contention that the funds are not used for a purpose for which the defendant is organized. Plaintiffs would have the defendant cover all bases while the defendant is satisfied to cover only a portion thereof. Plaintiffs are not deceived, rather they are unsatisfied. There is no " 'intentional infliction of temporal damage’ ”. (See, Advance Music Corp. v American Tobacco Co., 296 NY 79, 84.)

The leading case on charitable solicitation of funds, Riley v National Fedn. of Blind (487 US 781), makes it clear that such solicitations involve speech protected by the First Amendment.

_ The plaintiffs have not shown in what way they have been injured by the activities of the defendant. They merely contend that political concerns for Israel would require that the defendant use funds, collected in the United States, in a political manner. It is not the function of this court to decide such a political or foreign policy question. (See, Baker v Carr, 369 US 186, 217.) New York State has no interest in deciding where in Israel funds legitimately collected here shall be spent. (See, Central Hudson Gas & Elec. v Public Serv. Commn., 447 US 557.)

Sullivan, Asch and Smith, JJ., concur with Milonas, J.; Kupferman, J .P., dissents in an opinion.

Order, Supreme Court, New York County, entered on or about March 27, 1989, modified, on the law, to the extent of reinstating the first and second causes of action in plaintiffs’ complaint, and otherwise affirmed, without costs and without disbursements.