chimpanzees, chimp Photo Credit: Bigstock.

The New York Court of Appeals denied leave to appeal a decision by the Appellate Division, First Department, which had denied a petition for habeas relief for two chimpanzees being held in cages by owners upstate.

Judges Leslie Stein and Paul Feinman did not take part in the unanimous ruling.

The court’s refusal to hear the case leaves the lower appellate court‘s ruling in place. But Court of Appeals Judge Eugene Fahey, in a concurrence, criticized the First Department’s reasoning in finding that a chimp cannot be defined as a person and thus is not entitled to habeas relief.

 The Appellate Division, First Department, found that chimpanzees Tommy and Kiko are not entitled to relief to be moved to a primate sanctuary in South Florida.

Fahey wrote that he wanted to underscore that the court did not rule on the merits of the case brought by the Nonhuman Rights Project. He said that the courts must eventually tackle the question of whether or not a nonhuman animal is entitled to habeas or if they should be considered property or, essentially, a “thing.”

“The inadequacy of the law as a vehicle to address some of our most difficult ethical dilemmas is on display in this matter,” Fahey wrote. He said the First Department’s ruling is based on “nothing more” than the fact that chimps aren’t members of the human race, and that humans should not “lower the status of other highly intelligent species.”

In its ruling last year, the First Department found that chimpanzees’ cognitive abilities do not translate to abilities to bear legal duties or be held accountable for their actions.

That ruling affirmed two orders by Manhattan Supreme Court Justice Barbara Jaffe to deny habeas for the chimps.

Prior to that ruling, the Third and Fourth departments of the Appellate Division denied habeas petitions for Tommy and Kiko, and, in 2015, the Court of Appeals declined to hear appeals from those rulings.