(dissenting). We respectfully dissent. In order to establish standing, petitioners must demonstrate that they have suffered an injury in fact, that such injury falls within the zone of interest that the underlying statute aims to protect or promote and that the injury alleged is different in degree or kind from that suffered by the general public (see, e.g., Society of Plastics Indus. v County of Suffolk, 77 NY2d 761).
We agree with the majority that petitioners have suffered an injury in fact, inasmuch as they claim that respondents’ failure to enforce the statutes and regulations at issue has placed them at a competitive disadvantage in relation to on-reservation retailers, resulting in a substantial loss of revenue. However, the Court of Appeals has made it clear that business competitive injury is insufficient to confer standing under the *345zone of interest requirement unless the statute in question is aimed at preventing disruptive competition (see, Matter of Dairylea Coop. v Walkley, 38 NY2d 6). Here, the relevant statutes and regulations unquestionably are designed to provide revenue for the State and local governments (see, Mem of Div of Budget, 1965 NY Legis Ann, at 432, 434) and any effect that such statutes and regulations may have upon competition is merely incidental to those goals (see, Matter of Blue Cross v Cooper, 164 AD2d 578, 580-581; Arnot-Ogden Mem. Hosp. v Guthrie Clinic, 122 AD2d 413, 414-415, lv denied 68 NY2d 612). Accordingly, petitioners have not established that their in-fact injury falls within the concerns sought to be promoted by the subject statutes and regulations and have, therefore, failed to establish standing on this basis.
To the extent that petitioners assert that they have taxpayer standing under Boryszewski v Brydges (37 NY2d 361), we cannot agree. In Boryszewski, which dealt with the ability of a taxpayer to challenge the constitutionality of a State statute providing lump-sum "lulus” in lieu of expenses for members of the Legislature, the Court of Appeals concluded that standing would be recognized in instances where "the failure to accord such standing would be in effect to erect an impenetrable barrier to any judicial scrutiny of legislative action” (supra, at 364). No such barrier exists here.
One of the cornerstones of the Court of Appeals decision in Boryszewski was that it was unrealistic to expect a State official to step forward to challenge the constitutionality of a statute that, in the case of the Attorney-General, he or she was obligated to defend or, in the case of an individual member of the Legislature, from which he or she stood to benefit. Here, however, even assuming that one could not rely upon the Attorney-General or the Legislature to seek enforcement of the underlying statutes, to the extent that the State is being deprived of tax revenues, surely the Comptroller would have the incentive to intervene, as would the affected local governments. Thus, this matter is distinguishable from Boryszewski and petitioners have not, in our view, established standing under the principles set forth therein.
In spite of the foregoing, petitioners maintain and Supreme Court found that the holding in Matter of Dudley v Kerwick *346(52 NY2d 542) confers standing upon petitioners.* We disagree. Although we acknowledge that Dudley has gained limited recognition as a "standing” case (see, Matter of New York State Assn. of Tobacco & Candy Distribs. v New York State Tax Appeals Tribunal, 159 AD2d 132, 136; Matter of Gordon v Marrone, 151 Misc 2d 164, 166-167; Matter of Campbell Oil Co. v Chu, 127 Misc 2d 281, 283-284), it is important to note that Dudley contains no standing analysis whatsoever. In this regard, although Dudley makes passing reference to the Court of Appeals decision in Boryszewski v Brydges (37 NY2d 361, supra) and recognizes the then-recent trend of "liberalizing the ability of taxpayers to challenge governmental action”, (Matter of Dudley v Kerwick, supra, at 551), it is unclear whether the standing implicitly found in Dudley was based upon the "impenetrable barrier to suit” doctrine set forth in Boryszewski or, instead, was grounded upon the "zone of interest” test recognized by the Court of Appeals in Matter of Dairylea Coop. v Walkley (38 NY2d 6, supra) and subsequently reaffirmed in Society of Plastics Indus. v County of Suffolk (77 NY2d 761, supra). Whatever the basis for the standing implicitly found to be present in Dudley, however, we would not be inclined to hold, absent some clear indication from the Court of Appeals, that Dudley automatically confers standing upon a petitioner who could not otherwise satisfy either the "impenetrable barrier to suit” or the "zone of interest” test simply because that petitioner has alleged that some sort of blanket exemption from taxation has been granted, which is precisely what petitioners contend has occurred here.
Nor are we persuaded by the majority that standing may be found based upon an alleged violation of the Fourteenth Amendment of the US Constitution. Assuming, arguendo, that the case at bar is amenable to an equal protection analysis, we take issue with the majority’s conclusion that petitioners have established, as a matter of law, a grossly disproportionate incidence of nonenforcement against others similarly situated and, further, that the only reasonable explanation for the *347nonenforcement of the subject statutes and regulations is based upon the impermissible standard of race (see, Matter of 303 W. 42nd St. Corp. v Klein, 46 NY2d 686, 693). Nowhere in petitioners’ submissions is there any statistical data to establish a grossly disproportionate incidence of nonenforcement. Additionally, petitioners, who bore the burden of establishing discriminatory enforcement (see, supra, at 694), offered no explanation whatsoever for the stated nonenforcement. Indeed, the only explanation contained in the record for nonenforcement of the subject provisions was proffered by respondents, to wit, that the State has endeavored to negotiate this issue with the Indian nations and tribes who, in turn, were reluctant to deal directly with the State absent the participation of the Federal Government, thereby compelling the State to observe diplomatic protocols to the same extent as would be necessary in an international negotiation with a foreign nation. An additional factor pointed to by respondents for their failure to precipitously enforce the aforesaid statutes and regulations has to do with the disruptive and potentially violent demonstrations that have resulted from similar enforcements in the past and which, indeed, are taking place as of this writing. Accordingly, we do not believe that petitioners have sustained their heavy burden of proving a claim of discriminatory enforcement. In any event, even assuming that petitioners made a prima facie showing of invidiously motivated selective enforcement, in considering the merits of such a claim an evidentiary hearing is mandated (see, supra, at 693).
Accordingly, we would reverse the judgment of Supreme Court and dismiss the petition.
White and Casey, JJ., concur with Cardona, P. J.; Crew III and Carpinello, JJ., dissent in a separate opinion by Crew III, J.Ordered that the judgments are modified, on the law, without costs, by deleting so much thereof as provided for the Statewide suspension of the enforcement and collection of the sales and excise taxes on motor fuel and tobacco, and, as so modified, affirmed.
Our learned colleagues forego analysis of the Dudley case upon the basis that petitioners are not contesting an administrative determination made in violation of the statutes and regulations in question. We disagree. The petition specifically recites that respondents have failed to enforce said statutes and regulations resulting in a substantial loss of State revenues, as well as placing petitioners at a competitive disadvantage, and seeks injunctive relief compelling respondents to enforce the subject statutes and regulations. Quite clearly, petitioners are assailing respondents’ determination not to enforce the statutes and regulations at issue.