| Matter of Nonhuman Rights Project, Inc. v Presti |
| 2015 NY Slip Op 00085 [124 AD3d 1334] |
| January 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| In the Matter of Nonhuman Rights Project, Inc., onBehalf of Kiko, Appellant, v Carmen Presti, Individually and as an Officer and Directorof the Primate Sanctuary, Inc., et al., Respondents. |
Steven M. Wise, Coral Springs, Florida, of the Massachusetts Bar, admitted pro hacvice and Elizabeth Stein, New Hyde Park, for petitioner-appellant.
Appeal from a judgment (denominated order) of the Supreme Court, Niagara County(Ralph A. Boniello, III, J.), entered December 11, 2013 in a proceeding pursuant toCPLR article 70. The judgment dismissed the petition.
It is hereby ordered that the judgment so appealed from is unanimously affirmedwithout costs.
Memorandum: Petitioner, an organization seeking better treatment and housing of,inter alia, nonhuman primates, commenced this proceeding seeking a writ of habeascorpus 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 inunsuitable conditions, and it seeks to have Kiko's confinement transferred to a differentfacility selected by the North American Primate Sanctuary Alliance. On appeal from ajudgment dismissing the petition, petitioner contends that Kiko is entitled to the reliefsought. Contrary to petitioner's contention, we conclude that Supreme Court properlydismissed the petition.
Regardless of whether we agree with petitioner's claim that Kiko is a person withinthe statutory and common-law definition of the writ, " 'habeas corpus reliefnonetheless is unavailable as [that] claim[ ], even if meritorious, would not entitle [Kiko]to immediate release' " (People ex rel. Gonzalez v Wayne County Sheriff, 96 AD3d1698, 1699 [2012], lv denied 21 NY3d 852 [2013]; see People ex rel. Shannon vKhahaifa, 74 AD3d 1867, 1867 [2010], lv dismissed 15 NY3d 868[2010]; People ex rel. Hall vRock, 71 AD3d 1303, 1304 [2010], appeal dismissed 14 NY3d 882[2010], lv denied 15 NY3d 703 [2010]). It is well settled that a habeas corpusproceeding must be dismissed where the subject of the petition is not entitled toimmediate release from custody (see People ex rel. Kaplan v Commissioner ofCorrection of City of N.Y., 60 NY2d 648, 649 [1983]; People ex rel. Douglas vVincent, 50 NY2d 901, 903 [1980]). Here, petitioner does not seek Kiko's immediaterelease, 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 moreappropriate. Consequently, even assuming, arguendo, that we agreed with petitioner thatKiko should be deemed a person for the purpose of this application, and furtherassuming, arguendo, that petitioner has standing to commence this proceeding on behalfof Kiko, this matter is governed by the line of cases standing for the proposition thathabeas corpus does not lie where a petitioner seeks only to change the conditions ofconfinement rather than the confinement itself (see generally People ex rel. Dawson vSmith, 69 NY2d 689, 690-691 [1986]; Matter of Berrian v Duncan, 289AD2d 655, 655 [2001]; People ex rel. McCallister v McGinnis, 251 AD2d 835,835 [1998]). We therefore conclude that habeas corpus does not lie herein.Present—Smith, J.P., Peradotto, Lindley, Valentino and Whalen, JJ.