Katz Park Avenue Corp. v. Jagger

898 N.E.2d 17, 11 N.Y.3d 314

• Court: New York Court of Appeals
• Decided: October 23, 2008
• Status: Published

Opinions

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 NY Slip Op 30126[U] [2005]), but the Appellate Division reversed, with two Justices dissenting (46 AD3d 186 [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 [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 USC § 1101 [a] [15] [B]; see 8 CFR 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 USC § 1101 [a] [15] [B]), and “residence” is defined as “principal, actual dwelling place in fact, without regard to intent” (8 USC § 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), 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.