        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1300
CA 14-00357
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


IN THE MATTER OF THE NONHUMAN RIGHTS
PROJECT, INC., ON BEHALF OF KIKO,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

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.


     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 to CPLR article 70. The judgment dismissed
the petition.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     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 AD3d
1698, 1699, lv denied 21 NY3d 852; see People ex rel. Shannon v
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                                                         CA 14-00357

Khahaifa, 74 AD3d 1867, 1867, lv dismissed 15 NY3d 868; People ex rel.
Hall v Rock, 71 AD3d 1303, 1304, appeal dismissed 14 NY3d 882, lv
denied 15 NY3d 703). 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 NY2d 648, 649; People
ex rel. Douglas v Vincent, 50 NY2d 901, 903). 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 NY2d 689, 690-691; Matter
of Berrian v Duncan, 289 AD2d 655, 655; People ex rel. McCallister v
McGinnis, 251 AD2d 835, 835). We therefore conclude that habeas
corpus does not lie herein.




Entered:   January 2, 2015                     Frances E. Cafarell
                                               Clerk of the Court
