ALBANY, N.Y. – New York State Supreme Court Justice E. Michael Kavanaugh has dismissed the New York Association of Convenience Stores’ (NYACS) tax fairness lawsuit against Gov. George Pataki, the New York tax commissioner and wholesale distributors who illegally supply tax-free cigarettes to Native American stores.

Judge Kavanaugh said NYACS and its co-plaintiffs, Nice N Easy Grocery Shoppes and MWS Enterprises lacked legal “standing” to bring the lawsuit.

Thus, the case was not decided on the merits of whether the Pataki administration is obligated to enforce state law, which took effect on March 1, 2006, and requires the state to collect taxes on motor fuel and cigarettes sold by Indian retailers to non-Indian New York residents. That question remains unanswered. Pataki and his tax department have refused to enforce the law since it took effect.

“We’re kind of puzzled,” said NYACS President James Calvin, noting that Attorney General Eliot Spitzer represented the governor and tax commissioner in court and raised the standing issue. “If the chief elected official of the state doesn’t feel like enforcing a law that was duly enacted by the legislature, and the chief law enforcement official of the state defends that defiance of the constitution, then who does have standing to challenge it in court?”

NYACS was not notified of the decision until December 7, even though it was dated November 17, 2006, the same day Pataki announced he was nominating Judge Kavanagh to be elevated to the Appellate Division of State Supreme Court.

Calvin said it’s premature to say whether NYACS will appeal the “standing” decision, but that NYACS “will never abandon” its quest “for tax fairness for licensed convenience stores.”