Opinion
01-02-2015
In the Matter of the NONHUMAN RIGHTS PROJECT, INC., on behalf of KIKO, Petitioner–Appellant, v. Carmen PRESTI, Individually and as an Officer and Director of the Primate Sanctuary, Inc., Christie E. Presti, Individually and as an Officer and Director of the Primate Sanctuary, Inc. and the Primate Sanctuary, Inc., Respondents–Respondents.
Steven M. Wise, Coral Springs, Florida, of the Massachusetts Bar, Admitted Pro Hac Vice, and Elizabeth Stein, New Hyde Park, for Petitioner–Appellant.
Steven M. Wise, Coral Springs, Florida, of the Massachusetts Bar, Admitted Pro Hac Vice, and Elizabeth Stein, New Hyde Park, for Petitioner–Appellant.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, and WHALEN, JJ.
Opinion
MEMORANDUM:Petitioner, an organization seeking better treatment and housing of, inter alia, nonhuman primates, commenced this proceeding seeking a writ of habeas corpus on behalf of Kiko, a chimpanzee. Rather than seeking Kiko's immediate release, however, the petition alleges that Kiko is illegally confined because he is kept in unsuitable conditions, and it seeks to have Kiko's confinement transferred to a different facility selected by The North American Primate Sanctuary Alliance. On appeal from a judgment dismissing the petition, petitioner contends that Kiko is entitled to the relief sought. Contrary to petitioner's contention, we conclude that Supreme Court properly dismissed the petition.
Regardless of whether we agree with petitioner's claim that Kiko is a person within the statutory and common-law definition of the writ, “ ‘habeas corpus relief nonetheless is unavailable as [that] claim[ ], even if meritorious, would not entitle [Kiko] to immediate release’ ” (People ex rel. Gonzalez v. Wayne County Sheriff, 96 A.D.3d 1698, 1699, 947 N.Y.S.2d 738, lv. denied 21 N.Y.3d 852, 2013 WL 1760829 ; see People ex rel. Shannon v. Khahaifa, 74 A.D.3d 1867, 1867, 901 N.Y.S.2d 883, lv. dismissed 15 N.Y.3d 868, 910 N.Y.S.2d 34, 936 N.E.2d 916 ; People ex rel. Hall v. Rock, 71 A.D.3d 1303, 1304, 895 N.Y.S.2d 889, appeal dismissed 14 N.Y.3d 882, 903 N.Y.S.2d 338, 929 N.E.2d 401, lv. denied 15 N.Y.3d 703, 2010 WL 2605955 ). It is well settled that a habeas corpus proceeding must be dismissed where the subject of the petition is not entitled to immediate release from custody (see People ex rel. Kaplan v. Commissioner of Correction of City of N.Y., 60 N.Y.2d 648, 649, 467 N.Y.S.2d 566, 454 N.E.2d 1309 ; People ex rel. Douglas v. Vincent, 50 N.Y.2d 901, 903, 431 N.Y.S.2d 518, 409 N.E.2d 990 ). Here, petitioner does not seek Kiko's immediate release, nor does petitioner allege that Kiko's continued detention is unlawful. Rather, petitioner seeks to have Kiko placed in a different facility that petitioner deems more appropriate. Consequently, even assuming, arguendo, that we agreed with petitioner that Kiko should be deemed a person for the purpose of this application, and further assuming, arguendo, that petitioner has standing to commence this proceeding on behalf of Kiko, this matter is governed by the line of cases standing for the proposition that habeas corpus does not lie where a petitioner seeks only to change the conditions of confinement rather than the confinement itself (see generally People ex rel. Dawson v. Smith, 69 N.Y.2d 689, 690–691, 512 N.Y.S.2d 19, 504 N.E.2d 386 ; Matter of Berrian v. Duncan, 289 A.D.2d 655, 655, 733 N.Y.S.2d 790 ; People ex rel. McCallister v. McGinnis, 251 A.D.2d 835, 835, 673 N.Y.S.2d 946 ). We therefore conclude that habeas corpus does not lie herein.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.