Katz Park Ave. Corp. v. Jagger

• Decision Date: 23 October 2008
• Docket Number: No. 141,141
• Citation: Katz Park Ave. Corp. v. Jagger, 898 N.E.2d 17, 11 N.Y.3d 314, 869 N.Y.S.2d 4 (N.Y. 2008)
• Parties: KATZ PARK AVENUE CORP., Respondent, v. Bianca JAGGER, Appellant, et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

898 N.E.2d 17

11 N.Y.3d 314

KATZ PARK AVENUE CORP., Respondent, v. Bianca JAGGER, Appellant, et al., Defendants.

No. 141

Court of Appeals of New York.

October 23, 2008.

Law Offices of Roger D. Olson, New York City (Roger D. Olson of counsel), Lewis & Roberts, PLLC, Raleigh, North Carolina (Daniel K. Bryson of counsel), and Law Office of Ryan S. Goldstein, PLLC, New York City (Ryan S. Goldstein of counsel), for appellant.

Belkin Burden Wenig & Goldman, LLP, New York City (Magda L. Cruz, Sherwin Belkin and Kristine L. Grinberg of counsel), for respondent.

OPINION OF THE COURT

SMITH, J.

We hold that, at least in the absence of unusual facts, a foreign national who is in the United States on a tourist visa cannot meet the "primary residence" requirement of New York City's rent regulations.

Defendant's landlord brought this ejectment action to remove her from a rent stabilized apartment in Manhattan. The landlord alleged that "the Premises are not occupied . . . as the Tenant's primary residence." In support of a motion for summary judgment, the landlord submitted photocopies of pages from defendant's passport, showing that she is a British citizen and was admitted to the United States on a "B-2" visa, commonly known as a tourist visa. In response to the motion, defendant submitted no evidence as to her primary residence, essentially taking the position that the landlord had failed to meet its burden of proof.

Supreme Court denied the landlord's motion (2005 WL 5885421, 2005 N.Y. Slip Op. 30126[U] [2005]), but the Appellate Division reversed, with two Justices dissenting (46 A.D.3d 186, 843 N.Y.S.2d 329 [2007]). The Appellate Division granted defendant leave to appeal, and we now affirm.

Under the Rent Stabilization Code (RSC), a landlord may recover possession of a rent stabilized apartment from a tenant whose lease has expired if the apartment "is not occupied by the tenant . . . as his or her primary residence" (RSC [9 NYCRR] § 2524.4[c]). The Code does not define "primary residence" except to say that "no single factor shall be solely determinative," and to list "evidence which may be considered" in making the determination (RSC § 2520.6[u]). An appellate court has defined the term as "an ongoing, substantial, physical nexus with the . . . premises for actual living purposes" (Emay Props. Corp. v. Norton, 136 Misc.2d 127, 129, 519 N.Y.S.2d 90 [App Term, 1st Dept.1987]).

But while the rent regulations require a "primary residence" in New York, the holder of a B-2 visa is required to have a "principal, actual dwelling place" outside the United States. Federal regulations make B-2 visas available to aliens who are "visitors for pleasure" of the kind described in section 101(a)(15)(B) of the Immigration and Nationality Act (8 U.S.C. § 1101[a][15][B]; see 8 C.F.R. 214.1[a][1][i]; [2]). That subsection of the statute applies only to "an alien . . . having a residence in a foreign country which he has no intention of abandoning" (8 U.S.C. § 1101[a][15][B]), and "residence" is defined as "principal, actual dwelling place in fact, without regard to intent" (8 U.S.C. § 1101[a][33]).

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 distinction between "primary residence" and "domicile" (see Emay Props., 136 Misc.2d at 128, 519 N.Y.S.2d 90), relied on by Supreme Court and the dissenting Justices in the Appellate Division, is not relevant, because neither defendant's status under the rent regulations nor her immigration status depends on domicile.

We conclude that, at least absent some unusual circumstance, a primary residence in New York and a B-2 visa are logically incompatible. No such unusual circumstance exists here. Perhaps there are rare cases in which a tenant could show that her principal dwelling place for immigration purposes is in one place, and her primary residence for rent regulation purposes in another, but defendant has not even tried to make such a showing. Nor has she suggested that her B-2 visa was issued in error, or has become invalid. Thus, we need not consider whether someone who is in the United States illegally may have a primary residence in New York for rent regulation purposes.

Accordingly, the order of the Appellate Division should be affirmed with costs. The certified question should be answered in the affirmative.

CIPARICK, J. (concurring).

Because I cannot agree that, as a matter of law, a foreign citizen with a B-1 (business) or a B-2 (tourist) visa is automatically precluded from maintaining a primary residence under New York's rent stabilization laws, and because I further disagree with the proposition that "a primary residence in New York and a B-2 visa are logically incompatible" (see majority op. at 19), I write separately. I nonetheless concur in the result as I believe summary judgment was properly granted in this ejectment action since there are no triable issues of fact remaining as to the issue of primary residency considering the unrebutted evidence of the tenant's sporadic and tenuous ties to the occupancy of the apartment, her B-2 "tourist" visa, her admissions that she has not occupied the apartment for over three years (albeit due to a mold condition), reports from building personnel and the lack of New York State tax returns or other proof of residence. Defendant's attempt to rebut plaintiff's contentions in an attorney's affirmation pertaining to solely the issue of an alleged mold condition is insufficient to raise a triable issue of fact.

Rent Stabilization Code (9 NYCRR) § 2524.4(c) allows a landlord to refuse to renew a stabilized tenant's lease if the tenant does not occupy the premises as a "primary residence." The purpose of this law is to alleviate the shortage of housing in New York City by returning underutilized apartments to the marketplace for residents who need them (see Matter of Herzog v. Joy, 74 A.D.2d 372, 374, 428 N.Y.S.2d 1 [1st Dept.1980], affd. for reasons stated below 53 N.Y.2d 821, 439 N.Y.S.2d 922, 422 N.E.2d 582 [1981]; see also Governor's Mem approving L 1971, ch 371, 1971 McKinney's Session Laws of N.Y., at 2608). It is axiomatic that residents of New York City who may be in dire need of affordable housing should be able to obtain such housing before occupants who reside elsewhere and misuse rent-stabilized properties as, for example, warehouses, pieds-à-terre for occasional visits or for other more nefarious purposes.

The landlord bears the initial burden of showing that the tenant did not utilize the apartment as a primary residence (see Glenbriar Co. v. Lipsman, 5 N.Y.3d 388, 392, 804 N.Y.S.2d 719, 838 N.E.2d 635 [2005]). Although the terminology "primary residence" is, as the majority notes, left undefined by the Code, appellate courts have described it as "an ongoing, substantial, physical nexus with the controlled premises for actual living purposes — which can be demonstrated by objective, empirical evidence" (Emay Props. Corp. v. Norton, 136 Misc.2d 127, 129, 519...