                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: December 4, 2014                   518336
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK ex rel. THE
   NONHUMAN RIGHTS PROJECT,
   INC., on Behalf of TOMMY,
                    Appellant,
      v                                     OPINION AND ORDER

PATRICK C. LAVERY, Individually
   and as an Officer of Circle
   L Trailer Sales, Inc., et
   al.,
                    Respondents.
________________________________


Calendar Date:   October 8, 2014

Before:   Peters, P.J., Lahtinen, Garry, Rose and Lynch, JJ.

                             __________


      Elizabeth Stein, New Hyde Park, and Steven M. Wise,
admitted pro hac vice, Coral Springs, Florida, for appellant.

                             __________


Peters, P.J.

      Appeal from a judgment of the Supreme Court (J. Sise, J.),
entered December 18, 2013 in Fulton County, which denied
petitioner's application for an order to show cause to commence a
CPLR article 70 proceeding.

      The subject of this litigation is a chimpanzee, known as
Tommy, that is presently being kept by respondents on their
property in the City of Gloversville, Fulton County. On behalf
of Tommy, petitioner sought an order to show cause to commence a
habeas corpus proceeding pursuant to CPLR article 70 on the
ground that Tommy was being unlawfully detained by respondents.
                               -2-                518336

In support, petitioner submitted the affidavits of several
experts in an effort to establish that, in general, chimpanzees
have attributes sufficient to consider them "persons" for the
purposes of their interest in personal autonomy and freedom from
unlawful detention. Collectively, these submissions maintain
that chimpanzees exhibit highly complex cognitive functions –
such as autonomy, self-awareness and self-determination, among
others – similar to those possessed by human beings. Following
an ex parte hearing, Supreme Court found that the term "person"
under CPLR article 70 did not include chimpanzees and issued a
judgment refusing to sign an order to show cause. Petitioner
appeals.1 2

      This appeal presents the novel question of whether a
chimpanzee is a "person" entitled to the rights and protections
afforded by the writ of habeas corpus. Notably, we have not been
asked to evaluate the quality of Tommy's current living
conditions in an effort to improve his welfare. In fact,
petitioner's counsel stated at oral argument that it does not
allege that respondents are in violation of any state or federal
statutes respecting the domestic possession of wild animals
(see e.g. ECL 11-0512). According to petitioner, while
respondents are in compliance with state and federal statutes,
the statutes themselves are inappropriate. Yet, rather than
challenging any such statutes, petitioner requests that this
Court enlarge the common-law definition of "person" in order to
afford legal rights to an animal. We decline to do so, and
conclude that a chimpanzee is not a "person" entitled to the


     1
        As Supreme Court's judgment finally determined the matter
by refusing to issue an order to show cause to commence a habeas
corpus proceeding, it is appealable as of right (see CPLR 7011;
see generally People ex rel. Seals v New York State Dept. of
Correctional Servs., 32 AD3d 1262, 1263 [2006]; People ex rel.
Tatra v McNeill, 19 AD2d 845, 846 [1963]).
     2
        During the pendency of this appeal, this Court granted
petitioner's motion for a preliminary injunction enjoining
respondents from removing Tommy to Florida (2014 NY Slip Op
77524[U] [2014]).
                              -3-                518336

rights and protections afforded by the writ of habeas corpus.

      The common law writ of habeas corpus, as codified by CPLR
article 70, provides a summary procedure by which a "person" who
has been illegally imprisoned or otherwise restrained in his or
her liberty can challenge the legality of the detention (CPLR
7002 [a]). The statute does not purport to define the term
"person," and for good reason. The "Legislature did not intend
to change the instances in which the writ was available," which
has been determined by "the slow process of decisional accretion"
(People ex rel. Keitt v McMann, 18 NY2d 257, 263 [1966])
[internal quotation marks and citation omitted]). Thus, we must
look to the common law surrounding the historic writ of habeas
corpus to ascertain the breadth of the writ's reach.

      Not surprisingly, animals have never been considered
persons for the purposes of habeas corpus relief, nor have they
been explicitly considered as persons or entities capable of
asserting rights for the purpose of state or federal law (see
e.g. Lewis v Burger King, 344 Fed Appx 470, 472 [10th Cir 2009],
cert denied 558 US 1125 [2010]; Cetacean Community v Bush, 386
F3d 1169, 1178 [9th Cir 2004]; Tilikum ex rel. People for the
Ethical Treatment of Animals, Inc. v Sea World Parks &
Entertainment, Inc., 842 F Supp 2d 1259, 1263 [SD Cal 2012];
Citizens to End Animal Suffering & Exploitation, Inc. v New
England Aquarium, 836 F Supp 45, 49-50 [D Mass 1993]).
Petitioner does not cite any precedent – and there appears to be
none – in state law, or under English common law, that an animal
could be considered a "person" for the purposes of common-law
habeas corpus relief. In fact, habeas corpus relief has never
been provided to any nonhuman entity (see e.g. United States v
Mett, 65 F3d 1531, 1534 [9th Cir 1995], cert denied 519 US 870
[1996]; Waste Management of Wisconsin, Inc. v Fokakis, 614 F2d
138, 139-140 [7th Cir 1980], cert denied 449 US 1060 [1980];
Sisquoc Ranch Co. v Roth, 153 F2d 437, 441 [9th Cir 1946]; Graham
v State of New York, 25 AD2d 693, 693 [1966]).

      The lack of precedent for treating animals as persons for
habeas corpus purposes does not, however, end the inquiry, as the
writ has over time gained increasing use given its "great
flexibility and vague scope" (People ex rel. Keitt v McMann, 18
                              -4-                518336

NY2d at 263) [internal quotation marks and citation omitted]).
While petitioner proffers various justifications for affording
chimpanzees, such as Tommy, the liberty rights protected by such
writ, the ascription of rights has historically been connected
with the imposition of societal obligations and duties.
Reciprocity between rights and responsibilities stems from
principles of social contract, which inspired the ideals of
freedom and democracy at the core of our system of government
(see Richard L. Cupp Jr., Children, Chimps, and Rights: Arguments
From "Marginal" Cases, 45 Ariz St LJ 1, 12-14 [2013]; Richard L.
Cupp Jr., Moving Beyond Animal Rights: A Legal/Contractualist
Critique, 46 San Diego L Rev 27, 69-70 [2009]; see also Matter of
Gault, 387 US 1, 20-21 [1967]; United States v Barona, 56 F3d
1087, 1093-1094 [9th Cir 1995], cert denied 516 US 1092 [1996]).
Under this view, society extends rights in exchange for an
express or implied agreement from its members to submit to social
responsibilities. In other words, "rights [are] connected to
moral agency and the ability to accept societal responsibility in
exchange for [those] rights" (Richard L. Cupp Jr., Children,
Chimps, and Rights: Arguments From "Marginal" Cases, 45 Ariz St
LJ 1, 13 [2013]; see Richard L. Cupp Jr., Moving Beyond Animal
Rights: A Legal/Contractualist Critique, 46 San Diego L Rev 27,
69 [2009]).

      Further, although the dispositive inquiry is whether
chimpanzees are entitled to the right to be free from bodily
restraint such that they may be deemed "persons" subject to the
benefits of habeas corpus, legal personhood has consistently been
defined in terms of both rights and duties. Black's Law
Dictionary defines the term "person" as "[a] human being" or, as
relevant here, "[a]n entity (such as a corporation) that is
recognized by law as having the rights and duties [of] a human
being" (emphasis added). It then goes on to provide:

           "So far as legal theory is concerned, a
           person is any being whom the law regards
           as capable of rights and duties.. . .
           Persons are the substances of which rights
           and duties are the attributes. It is only
           in this respect that persons possess
           juridical significance, and this is the
                              -5-                518336

           exclusive point of view from which
           personality receives legal recognition"
           (Black's Law Dictionary [7th ed 1999],
           citing John Salmond, Jurisprudence 318
           [10th ed 1947]; see John Chipman Gray, The
           Nature and Sources of the Law [2d ed], ch
           II, at 27 [stating that the legal meaning
           of a "person" is "a subject of legal
           rights and duties"]).

Case law has always recognized the correlative rights and duties
that attach to legal personhood (see e.g. Smith v ConAgra Foods,
Inc., 431 SW3d 200, 203-204 [Ark 2013], citing Calaway v Practice
Mgmt. Servs., Inc., 2010 Ark 432, *4 [2010] [defining a "person"
as "a human being or an entity that is recognized by law as
having the rights and duties of a human being"]; Wartelle v
Womens' & Children's Hosp., 704 So 2d 778, 780 [La 1997] [finding
that the classification of a being or entity as a "person" is
made "solely for the purpose of facilitating determinations about
the attachment of legal rights and duties"]; Amadio v Levin, 509
Pa 199, 225, 501 A2d 1085, 1098 [1985, Zappala, J., concurring]
[noting that "'[p]ersonhood' as a legal concept arises not from
the humanity of the subject but from the ascription of rights and
duties to the subject"]).3 Associations of human beings, such as
corporations and municipal entities, may be considered legal
persons, because they too bear legal duties in exchange for their
legal rights (see e.g. Pembina Consol. Silver Mining & Milling
Co. v Pennsylvania, 125 US 181, 189 [1888]; Western Sur. Co. v
ADCO Credit, Inc., 251 P3d 714, 716 [Nev 2011]; State v A.M.R.,
147 Wash 2d 91, 94, 51 P3d 790, 791 [2002]; State v Zain, 207 W
Va 54, 61-65, 528 SE2d 748, 755-759 [1999], cert denied 529 US
1042 [2000]).


    3
        To be sure, some humans are less able to bear legal
duties or responsibilities than others. These differences do not
alter our analysis, as it is undeniable that, collectively, human
beings possess the unique ability to bear legal responsibility.
Accordingly, nothing in this decision should be read as limiting
the rights of human beings in the context of habeas corpus
proceedings or otherwise.
                              -6-                518336

      Needless to say, unlike human beings, chimpanzees cannot
bear any legal duties, submit to societal responsibilities or be
held legally accountable for their actions. In our view, it is
this incapability to bear any legal responsibilities and societal
duties that renders it inappropriate to confer upon chimpanzees
the legal rights – such as the fundamental right to liberty
protected by the writ of habeas corpus – that have been afforded
to human beings.

      Our rejection of a rights paradigm for animals does not,
however, leave them defenseless. The Legislature has extended
significant protections to animals, subject to criminal
penalties, such as prohibiting the torture or unjustifiable
killing of animals (see Agriculture and Markets Law § 353), the
abandonment of animals in a public place (see Agriculture and
Markets Law § 355), the transportation of animals in cruel or
inhuman manners (see Agriculture and Markets Law § 359 [1]) or by
railroad without periodically allowing them out for rest and
sustenance (see Agriculture and Markets Law § 359 [2]), and the
impounding of animals and then failing to provide them sustenance
(see Agriculture and Markets Law § 356). Notably, and although
subject to certain express exceptions, New Yorkers may not
possess primates as pets (see ECL 11-0103 [6] [e] [1]; 11-0512).
Thus, while petitioner has failed to establish that common-law
relief in the nature of habeas corpus is appropriate here, it is
fully able to importune the Legislature to extend further legal
protections to chimpanzees.

     Lahtinen, Garry, Rose and Lynch, JJ., concur.
                        -7-                  518336

ORDERED that the judgment is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
