Tenant with Foreign Tourist Visa Can't Claim Primary Residence

Landlord sued to evict rent-stabilized tenant for nonprimary residence. Landlord asked the court to rule without a trial. Landlord showed that tenant was a British national who lived in New York while holding a B2 tourist visa. Landlord claimed that, as a matter of law, tenant couldn't maintain a primary residence at her New York apartment. The court ruled against landlord, holding that a trial was needed to determine the facts. Landlord appealed and won, although two judges on the panel disagreed. Tenant then appealed to New York's highest court and lost. In the absence of unusual facts, federal law barred tenant from claiming that the New York apartment was her primary residence. To have a valid B2 tourist visa, a person must have a "principal, actual dwelling place" outside the United States that she "has no intention of abandoning." Claiming one's primary residence is in New York while holding a B2 visa is inconsistent, unless tenant showed that her principal dwelling place for immigration purposes was in one place while her primary residence for rent regulation purposes was at the apartment. In this case, tenant failed to do so.

Katz Park Avenue Corp. v. Jagger: NYLJ, 10/24/08, p. 28, col. 3 (Ct. App.; Smith, J, Graffeo, Read, Pigott, Jones, JJ, Ciparick, J concurring)