Governor Spitzer is defending the rights of New Yorkers to eat a locally grown luxury food, foie gras. A state agency under the governor’s control, the Department of Agriculture and Markets, is asking a state judge, Leslie Stein of state Supreme Court in Albany, to dismiss an animal rights lawsuit that claims ducks raised for foie gras production are so overfed as to be diseased and unfit for market. The lawsuit, filed in November 2006, demands that locally produced foie gras be designated an “adulterated” food product under state law. Such a designation would prevent the sale of the delicacy and could end New York’s foie gras industry. In court papers filed late last week, lawyers for the state argue that the task of assessing food quality is better left to the Department of Agriculture and Markets than to the judge.

The lawyers claim that the department’s commissioner is entitled to a wide degree of discretion when making a decision on whether to condemn a product. Currently, Mr. Spitzer’s pick for the commissioner’s job, Patrick Hooker, awaits confirmation. It is unclear whether Mr. Hooker’s views regarding foie gras and its suitability for sale differ from those of his predecessor, Patrick Brennan, who was appointed by Mr. Spitzer’s Republican predecessor, Governor Pataki.

A spokesman for Mr. Spitzer, who is a Democrat, declined to comment.

Last year, Chicago became the first city to ban foie gras after the city’s aldermen found the conditions in which the birds were raised to amount to animal cruelty. A councilman from Manhattan, Alan Gerson, proposed a similar ordinance in New York last year.

There are two foie gras farms in New York, Hudson Valley Foie Gras and La Belle Farm, making the state one of the country’s largest producers of the delicacy made from the fattened livers of geese and duck.

When the Humane Society filed its suit last year it submitted reports by animal pathologists alleging that the forcible feeding process of the ducks renders them diseased.

“The most interesting thing is that the state agency tasked with the quality of New York’s food has no evidence to present to contradict ours,” an attorney for the Humane Society who filed the lawsuit, Carter Dillard, said. Instead, Mr. Dillard said, the state had only offered “hollow and meritless procedural arguments.”

However, the court filing does offer hints at what arguments the state will put forward as the lawsuit is litigated. In deciding whether a food product should be banned, the agriculture department considers, among other things, what risk “a particular product may pose to human health,” according to the filing. The case could be decided on purely procedural grounds. The Department of Agriculture and Markets told Judge Stein that none of the animal rights activists who joined the lawsuit have standing to appear in court. Those activists allege a wide range of harms resulting from the state’s unwillingness to ban foie gras from sale. They claim to have suffered loss of appetites or an ongoing worry that they may have inadvertently eaten foie gras.

“Fear and speculative injury is insufficient” for standing, lawyers for the Department of Agriculture and Markets claim.

Attorneys representing the Department of Agriculture and Markets include Michael McCormick, Joan Kehoe, and Sarah Hall Peak. They work for the department itself, not the state attorney general’s office, which sometimes handles litigation involving the state. The Humane Society is scheduled to respond to the state’s motion next month.