ex rel. Leo v. Stanley

• Citation: 49 Misc.3d 746,16 N.Y.S.3d 898,2015 N.Y. Slip Op. 25257
• Parties: In the Matter of a Proceeding under ARTICLE 70 OF the CPLR FOR A WRIT OF HABEAS CORPUS, THE NONHUMAN RIGHTS PROJECT, INC., on behalf of HERCULES AND LEO, Petitioner, v. Samuel L. STANLEY Jr., M.D., as President of State University of New York at Stony Brook a/k/a Stony Brook University and State University of New York at Stony Brook a/k/a Stony Brook University, Respondents.
• Decision Date: 29 July 2015
• Court: United States State Supreme Court (New York)

49 Misc.3d 746
16 N.Y.S.3d 898
2015 N.Y. Slip Op. 25257

In the Matter of a Proceeding under ARTICLE 70 OF the CPLR FOR A WRIT OF HABEAS CORPUS, THE NONHUMAN RIGHTS PROJECT, INC., on behalf of HERCULES AND LEO, Petitioner,
v.
Samuel L. STANLEY Jr., M.D., as President of State University of New York at Stony Brook a/k/a Stony Brook University and State University of New York at Stony Brook a/k/a Stony Brook University, Respondents.

Supreme Court, New York County, New York.

July 29, 2015.

[16 N.Y.S.3d 900]

Elizabeth Stein, Esq., New Hyde Park, Steven M. Wise, Esq., pro hac vice, Nonhuman Rights Project, Coral Springs, FL, for petitioner.

Christopher Coulston, AAG, Michael R. Kelkman, AAG, Office of the New York State Atty. General, New York, for respondents.

Bob H. Kohn, Esq., pro hac vice, The Center for the Study of Great Ideas, Inc., Daniel J. Kornstein, Esq., Kornstein Veisz Wexler & Pollard, LLP, New York, for amicus curiae.

BARBARA JAFFE, J.

Petitioner brings this proceeding pursuant to CPLR article 70 and under the common law for a writ of habeas corpus on behalf of Hercules and Leo, two chimpanzees now in the custody of respondent State University of New York at Stony Brook (University). It seeks an order directing respondents to demonstrate the basis for detaining Hercules and Leo, and an order directing their release and transfer to a sanctuary in Florida. (Verified Petition [Pet.] ).

Respondents oppose the petition and cross move to change venue. (Respondents' Memorandum of Law in Opposition to the Petition for a Writ of Habeas Corpus and in Support of their Cross–Motion to Change Venue to Supreme Court, Suffolk County, dated May 22, 2015 [Resps. Memo. of Law] ).

While previous considerations of the issues raised here are thoughtful ( see infra, at II.), they lack the benefit of input from both sides. Given the important questions raised here, I signed petitioner's order to show cause, and was mindful of petitioner's assertion that “the court need not make an initial judicial determination that Hercules and Leo are persons in order to issue the writ and show cause order.” (Pet. at 1).

I. BACKGROUND

Petitioner is a non-profit organization with a mission to “change the common law status of at least some nonhuman animals from mere things,' which lack the capacity to possess any legal rights, to persons,' who possess such fundamental rights as bodily integrity and bodily liberty, and those other legal rights to which evolving standards of morality, scientific discovery, and human experience entitle them.” (Pet., ¶¶ 11, 18; Memorandum of Law in Support of Petition [Pet. Memo. of Law] at 71 n. 35; see generally NhRP website (www. nonhumanrights project. org). Hercules and Leo, on whose behalf petitioner seeks a writ of habeas corpus, are two young adult male chimpanzees who, since November 2010, have been held at the University and used as research subjects in studies on the locomotion of chimpanzees and other primates. (Pet., ¶¶ 12, 22; Affidavit of Styliana–Anna Tsirka in Opposition to Petition [Tsirka Affid.], ¶ 4). The University, located in Suffolk County, New York, is part of the State University of New York, a statewide system of geographically diverse university and college campuses established to “provide to the people of New York educational services of the highest quality, with the broadest possible access....” (Education Law §§ 351, 352). Respondent Samuel L. Stanley Jr., M.D., is President of the University. (Pet., ¶ 13).

In accordance with its mission, petitioner commenced this litigation and has filed similar cases in several other New York courts with the goal of obtaining legal

[16 N.Y.S.3d 901]

rights for chimpanzees, and ultimately for other animals. ( See NhRP Press Release, dated Dec. 2, 2013, available on NhRP website). Petitioner filed its first cases in New York after learning that three of seven known chimpanzees being held in New York had recently died. (Pet., ¶ 6). It hopes for a successful outcome here, given this state's recognition of legal personhood for some nonhuman animals under the Estates, Powers and Trusts Law (EPTL), which expressly permits a “domestic or pet animal” to be designated as a beneficiary of a trust. ( SeeEPTL § 7–8.1 [“Trusts for pets”]; Pet. Memo. of Law at 54–56).

The conditions under which Hercules and Leo are confined are not challenged by petitioner, which denies that they are relevant to the relief it seeks, and it advances no allegation that respondents are violating any federal, state or local laws by holding Hercules and Leo (Pet., ¶¶ 5, 8), nor does it “seek improved welfare for Hercules or Leo” ( id.), or otherwise “to reform animal welfare legislation” ( id., ¶ 11; see Pet. Memo. of Law at 5). Rather, according to petitioner, the sole issue is whether Hercules and Leo may be legally detained at all. (Pet., ¶ 5; Pet. Memo. of Law at 5–6).

Before proceeding here, petitioner unsuccessfully sought similar determinations in Fulton and Niagara counties on behalf of other chimpanzees, and in Suffolk County, on behalf of Hercules and Leo. While petitioner allows that its efforts to obtain judicial recognition of chimpanzees as legal persons are unprecedented (Pet. Memo. of Law at 59; but see Matter of Fouts, 176 Misc.2d 521, 677 N.Y.S.2d 699 [Sur.Ct., Nassau County 1998] [court declined to reach issue of whether chimpanzees should be treated as persons under disability pursuant to SCPA 103(40) ] ), and that this and the prior proceedings constitute the first attempts to obtain habeas corpus relief on behalf of chimpanzees, it argues that “the novelty of their claims is no reason to deny Hercules and Leo habeas corpus relief.” Even without legal precedent, it asserts, the “great writ” of habeas corpus must be broadly construed to protect Hercules and Leo ( id. at 54–56).

In support, petitioner offers affidavits from psychologists, zoologists, anthropologists, and primatologists, who have conducted in-depth research into the behavior, personality, cognition, intelligence, communication, and language skills of chimpanzees and other nonhuman primates. Each expert attests, collectively and generally, to the complex cognitive abilities of chimpanzees. (Pet., ¶¶ 38–39 and annexed affidavits; Pet. Memo. of Law at 6–22 and citations therein).¹

According to the experts, humans and chimpanzees share almost 99 percent of their DNA, and chimpanzees are more

[16 N.Y.S.3d 902]

closely related to human beings than they are to gorillas. (Pet. Memo. of Law at 6, 7). They share with humans similarities in brain structure and cognitive development, including a parallel development of communications skills, as shown by their use and understanding of sign language. ( Id. at 7–8). Chimpanzees also demonstrate self-awareness, recognizing themselves in mirrors and photographs and on television, and have the capacity to reflect on their behavior. ( Id. at 8–9). They manifest a capacity for empathy, are attuned to the experiences and emotions of others, and imitate and emulate others. ( Id. at 15, 16, 19–20). They behave in ways that reflect moral inclinations ( id. at 20), and demonstrate compassion and depression when a member of their community or familial group dies ( id. at 16–17; Boesch Aff., ¶ 17). They also have a cooperative social life (Pet. Memo. of Law at 20), engage in imaginary play, and display a sense of humor ( id. at 14, 15).

Based on this research and the belief that chimpanzees are autonomous and self-determining beings entitled to such fundamental rights as bodily liberty and equality, petitioner seeks the issuance of a writ and a determination that Hercules and Leo are being unlawfully deprived of their liberty.

II. PRIOR RELATED PROCEEDINGS

In December 2013, petitioner filed three nearly identical lawsuits seeking substantially the same relief sought here, in Fulton County Supreme Court on behalf of Tommy, a chimpanzee held in a shed on a trailer sales lot; in Niagara County Supreme Court on behalf of Kiko, a chimpanzee living in a cement building on his owner's property; and in Suffolk County Supreme Court on behalf of Hercules and Leo.

The Fulton County justice, after hearing petitioner's arguments ex parte, declined to sign petitioner's order to show cause and writ of habeas corpus on the ground that a chimpanzee is not a person for whom a writ of habeas corpus may be sought. (Affirmation of Christopher Coulston in Opposition to Petition and in Support of Cross–Motion to Change Venue, dated May 22, 2015 [Aff. in Opp.], Exh. F at 26). The Third Department affirmed, holding that “a chimpanzee is not a person' entitled to the rights and protections afforded by the writ of habeas corpus.” (People ex rel. Nonhuman Rights Project, Inc. v. Lavery, 124 A.D.3d 148, 150, 998 N.Y.S.2d 248 [3d Dept.2014] ). In reaching its conclusion, the Court, although noting that the “lack of precedent for treating animals as persons for habeas corpus purposes does not ... end the inquiry” ( id.), reasoned that “legal personhood has consistently been defined in terms of both rights and duties ” (id. at 152, 998 N.Y.S.2d 248 [emphasis in original] ), and found that chimpanzees' “incapability to bear any legal responsibilities and societal duties” disqualifies them from receiving legal rights afforded human beings ( id.). The Court also observed that petitioner was not without a remedy, and may look to “the Legislature to extend further legal protections to chimpanzees.” (Id. at 153, 998 N.Y.S.2d 248).

In the Niagara County case, after hearing petitioner ex parte, the justice denied petitioner's request for an order to show cause and writ of habeas corpus, also finding that Kiko is not a person within the meaning of the law relating to habeas corpus, and suggesting that the matter is more legislative than judicial. (Aff. in Opp., Exh. E at 15–16). The Fourth Department upheld the lower court, finding, without reaching the issue of legal personhood, that the petition for a writ...