(dissenting.) Plaintiff alleges that the AKC standard for judging the Brittany Spaniel in sponsored competitions provides that “[a]ny tail substantially more than four inches shall be severely penalized”; that his Brittany Spaniel’s tail is approximately 10 inches long; that he has not docked his dog’s tail because tail docking for cosmetic reasons violates Agriculture and Markets Law § 353; and that, as a result of his refusal to violate the statute, he cannot meaningfully compete in AKC competitions. I find that these allegations state a cause of action for a declaration that plaintiff has been deprived of the privileges of membership in the AKC on the basis of his refusal to violate a state law. Accordingly, I would reverse the motion court’s order and remand the case for further proceedings.
The majority, having held that plaintiffs claim is justiciable and that Agriculture and Markets Law § 353 may be construed to prohibit tail docking as an unjustifiable mutilation, nevertheless concludes that plaintiff lacks standing to obtain any of the civil remedies he seeks for the alleged violation of the statute and that issues of fact preclude this Court from declaring whether plaintiff would be subject to criminal prosecution if he docked his dog’s tail because plaintiff has not actually docked his dog’s tail and may not ever do so.
Plaintiffs object is not to privately enforce section 353. He does not seek to have defendants prosecuted for violating the statute or even enjoined from docking dogs’ tails. Plaintiff seeks a declaration that the AKC’s standard for judging the Brittany Spaniel deprives him of a benefit of membership on the basis of his unwillingness to violate a state law and he seeks to enjoin defendants from enforcing that standard against him by penalizing his dog in competitions on the basis of the length of her tail. As the majority recognizes, plaintiffs claim that the AKC’s standard promotes, among the owners of Brittany Spaniels raised for competition, a practice that amounts to unjustifiable mutilation of the dogs is a sufficient allegation that the standard violates state law to invoke that exception to the general rule of judicial noninterference in an organization’s self-governance (see e.g. Stevenson v Holstein-Friesian Assn. of Am., 30 F2d 625, 627 [1929] [courts “will inquire whether the *84action taken was in bad faith, or in violation of the laws of the land”]). Accordingly, having been injured in his ability to compete lawfully in AKC-sponsored competitions as a result of the organization’s adoption of the standard, plaintiff may bring this action for declaratory judgment and/or injunctive relief (see Simons v Berry, 240 NY 463, 465 [1925] [cause of action for equitable relief stated by union member who allegedly was “denied the privileges of membership”]).
Contrary to the majority’s contention, the fact that plaintiff has not docked his dog’s tail and may not ever do so does not create a disputed set of facts so as to preclude a declaratory judgment. In the case of Reed v Littleton (275 NY 150 [1937]), relied on by the majority, after being acquitted of gambling charges and receiving notice that the District Attorney intended to institute further prosecutions, the plaintiff sought a declaratory judgment, for res judicata purposes and as a complete defense to any future prosecution on the same facts, that his operations were not in violation of the State’s gambling laws. The Court held that no action for a declaratory judgment was available to the plaintiff because the possibility existed that at a later date the District Attorney would find further facts that shed a new light on the plaintiffs transactions (id. at 153-154). In distinction, there is no dispute as to what constitutes tail docking (see Bunis v Conway, 17 AD2d 207, 209 [1962], also cited by the majority, holding available an action for declaratory judgment [“No question of fact is involved, in the sense of a question as to what had factually occurred or what is factually proposed to be done”]). Whether tail docking for purely cosmetic reasons violates section 353 is solely a question of law and entirely appropriate for a declaratory judgment (see New York Foreign Trade Zone Operators v State Liq. Auth., 285 NY 272, 277 [1941]; Bunis, supra at 209 [“this presents a question of law for ultimate decision by the court, depending upon the court’s determination of the meaning, scope and applicability of the statute”]).
I would also note that, as to whether tail docking violates section 353, the parties have laid bare their proof on this motion to dismiss and there appears to be no question of fact that would require trial or preclude summary judgment at this stage. As the majority points out, the dispute as to whether tail docking violates section 353 centers on whether tail docking is justifiable. Defendants assert that docking a Brittany Spaniel’s tail protects the dog against tail injuries during field trials and hunts (see People v Voelker, 172 Misc 2d 564, 568-*85569 [1997] [although justification is an element of the offense, rather than a defense, the party accused of the violation must specify the justification claimed]). Assuming arguendo that the protection of hunting dogs against tail injuries justifies docking the tails of hunting dogs, it is not a justification for docking the tails of nonhunting dogs, such as plaintiff’s, for purposes of AKC competitions.
Mazzarelli, J.P., and Marlow, J., concur with Saxe, J.; Ellerin and Lerner, JJ., dissent in a separate opinion by Ellerin, J.
Judgment, Supreme Court, New York County, entered February 28, 2002, affirmed, without costs. Appeal from order, same court, entered February 26, 2002, dismissed, without costs, as subsumed in the appeal from the ensuing judgment.