IN RE: Roman FLIKSHTEIN (2000)

Supreme Court, Appellate Division, Second Department, New York.

IN RE: Roman FLIKSHTEIN, appellant, v. John CAHILL, etc., respondent.

Decided: June 26, 2000

LAWRENCE J. BRACKEN, J.P., CORNELIUS J. O'BRIEN, WILLIAM C. THOMPSON and ANITA R. FLORIO, JJ.

Stephen David Fink, Forest Hills, N.Y., for appellant. Eliot Spitzer, Attorney-General, New York, N.Y. (Gordon J. Johnson and Mark Gimpel of counsel), for respondent.

In a proceeding pursuant to CPLR article 78 in the nature of prohibition to prohibit the respondent New York State Department of Environmental Conservation from seizing a monkey from the petitioner, the appeal is from a judgment of the Supreme Court, Queens County (Lonschein, J.), dated September 21, 1999, which denied the petition and dismissed the proceeding.

ORDERED that the judgment is affirmed, with costs.

The petitioner's possession of a cercopithecus diana, commonly referred to as a Diana monkey, without a permit, is expressly prohibited by ECL 11-0511 on the ground that such a monkey is a member of an endangered species (see also, ECL 11-0535[1]; 50 CFR 17.11[h] ). Pursuant to ECL 11-0511, the New York State Department of Environmental Conservation is permitted to seize endangered or threatened animals possessed without a permit. Accordingly, the Supreme Court properly denied the petition and dismissed the proceeding.

MEMORANDUM BY THE COURT.

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