Katz Park Avenue Corp. v. Jagger, 11 N.Y.3d 314 (2008)
A foreign national in the United States on a tourist visa cannot, absent unusual circumstances, satisfy the “primary residence” requirement for rent stabilization purposes in New York City.
Summary
The landlord brought an ejectment action against Jagger, a British citizen residing in a rent-stabilized apartment in Manhattan. The landlord argued that Jagger did not use the apartment as her primary residence, presenting passport evidence showing she was in the U.S. on a tourist visa (B-2), which requires the visa holder to maintain a principal residence outside the United States. Jagger did not offer evidence to the contrary. The Court of Appeals held that holding a B-2 visa is generally incompatible with maintaining a primary residence in New York City for rent stabilization purposes. The Court thus affirmed the Appellate Division’s order granting summary judgment to the landlord.
Facts
Katz Park Avenue Corp., the landlord, sought to evict Jagger from her rent-stabilized apartment in Manhattan.
The landlord supported the claim by providing copies of Jagger’s passport, which showed she was a British citizen admitted to the U.S. on a B-2 tourist visa.
Jagger presented no evidence demonstrating that the apartment was her primary residence or challenging the validity of her visa; she argued that the landlord failed to meet its burden of proof.
Procedural History
The Supreme Court initially denied the landlord’s motion for summary judgment.
The Appellate Division reversed the Supreme Court’s decision, granting summary judgment to the landlord.
The Appellate Division granted Jagger leave to appeal to the Court of Appeals.
Issue(s)
Whether a foreign national, present in the United States on a tourist visa requiring them to maintain a principal residence outside the U.S., can simultaneously satisfy the “primary residence” requirement for rent-stabilized apartments in New York City.
Holding
Yes, generally no, because holding a B-2 visa is logically incompatible with maintaining a primary residence in New York City, absent unusual circumstances not present in this case.
Court’s Reasoning
The court reasoned that the Rent Stabilization Code (RSC) requires a tenant to maintain a “primary residence” in the city to qualify for rent stabilization benefits. While RSC § 2520.6(u) does not provide a single definition, it speaks of “evidence which may be considered”. Moreover, New York courts have defined “primary residence” as an “ongoing, substantial, physical nexus with the . . . premises for actual living purposes” (Emay Props. Corp. v Norton, 136 Misc 2d 127, 129 [App Term, 1st Dept 1987]).
Federal regulations dictate that a B-2 visa is available only to aliens “having a residence in a foreign country which he has no intention of abandoning” (8 USC § 1101 [a] [15] [B]). The term “residence” is defined as the alien’s “principal, actual dwelling place in fact, without regard to intent” (8 USC § 1101 [a] [33]).
The Court found these requirements contradictory. It stated, “Thus, if her B-2 visa is valid, defendant has a ‘principal, actual dwelling place in fact’ outside the United States. How she could at the same time have a ‘primary residence’ in New York City is something she has not explained.”
The court distinguished between “primary residence” and “domicile,” noting that neither the rent regulations nor immigration status depends on domicile.
The court acknowledged the possibility of “unusual circumstances” where a tenant might demonstrate that their principal dwelling place for immigration purposes differs from their primary residence for rent regulation, but Jagger made no such attempt.
The court explicitly declined to consider whether someone in the U.S. illegally could establish a primary residence for rent regulation purposes, as Jagger did not claim her visa was invalid.
In conclusion, the court found Jagger’s status as a B-2 visa holder inconsistent with a claim of primary residence in New York City. The implication is that New York courts will not allow manipulation of immigration status to gain rent stabilization benefits.