## Facts

- Two adult male chimpanzees, Tommy and Kiko, were kept in captivity at separate facilities in New York.
- Nonhuman Rights Project, Inc. (NhRP), a nonprofit organization, filed two CPLR Article 70 habeas corpus petitions on their behalf.
- The petitions sought to have Tommy and Kiko recognized as “persons” for purposes of CPLR Article 70 and to obtain relief based on a claimed right to bodily liberty.
- NhRP argued that chimpanzees have advanced cognitive, social, and moral abilities, including self-recognition, goal-directed behavior, planning, communication about past and future events, awareness of others’ viewpoints, tool making and use, counting and ordering, and social behaviors described as fairness, cooperation, and conflict resolution.
- The requested remedy was an order requiring respondents to justify the chimpanzees’ confinement and directing that the chimpanzees be moved to more suitable facilities, such as primate sanctuaries.
- The trial court denied the petitions, ruling that chimpanzees are not “persons” within the meaning of CPLR Article 70 and thus cannot seek habeas relief.
- NhRP appealed. The Appellate Division considered the prior history of similar habeas petitions previously filed on behalf of Tommy and Kiko and whether the new filings were barred as successive.

## Issues

1. Whether the habeas petitions were barred as successive proceedings under CPLR 7003(b) because earlier habeas applications on behalf of Tommy and Kiko had been denied and no sufficient change in circumstances was shown.
2. Whether a chimpanzee is a “person” entitled to seek habeas corpus relief under CPLR Article 70.
3. Whether, even assuming habeas corpus could be available, the writ could be used to obtain the relief requested here—transfer of custody to a sanctuary or other facility—rather than release from detention.

## Decision

- The Appellate Division, First Department affirmed the judgments denying habeas corpus relief.
- The court held the petitions were successive habeas applications and were not warranted because NhRP did not show a change in circumstances justifying renewed petitions under CPLR 7003(b).
- The court further held that chimpanzees are not “persons” for purposes of CPLR Article 70 and therefore are not eligible for habeas corpus relief.
- The court also concluded that, even if habeas corpus were assumed to be available in theory, it would not lie on these facts because the petitions sought a court-ordered transfer to a different custodian or facility rather than the traditional habeas remedy of release from unlawful restraint.

## Legal Principles

- A court may deny a successive habeas corpus application under CPLR 7003(b) when the petitioner fails to show a sufficient change in circumstances or other basis to revisit an earlier denial.
- For CPLR Article 70, the term “person” is limited by New York habeas practice; asserted intelligence or human-like traits alone do not confer person status for habeas purposes.
- New York courts have linked habeas “personhood” to the legal framework of rights and responsibilities recognized by law, including the ability to bear legal duties and be held accountable.
- Habeas corpus is designed to test the legality of detention and secure release from unlawful restraint; using the writ to obtain judicially directed relocation to a preferred placement is outside the typical scope of habeas relief.
- Broad changes to the legal status of nonhuman animals are treated as matters for the Legislature rather than expansion through Article 70 habeas proceedings.

## Conclusion

In *Tommy v. Lavery*, the First Department affirmed denial of NhRP’s Article 70 habeas petitions on behalf of chimpanzees Tommy and Kiko, holding that the petitions were successive and unsupported by changed circumstances under CPLR 7003(b), that chimpanzees are not “persons” entitled to habeas relief under New York law, and that the transfer-to-sanctuary remedy sought did not fit the traditional function of the writ.


Tommy v. Lavery, 54 N.Y.S.3d 392 (2017)