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Bianca Jagger Fails to Prove New York City Apartment Is Primary Home
Still pending: Jagger's $20 million personal injury and property suit against her landlord
New York Law Journal
October 24, 2008
Bianca Jagger and other foreign nationals who are in the United States on tourist visas cannot meet New York City's "primary residence" requirement entitling them to rent-stabilized apartments, the New York Court of Appeals ruled Thursday.
Jagger, a human rights activist and the first wife of Rolling Stones' frontman Mick Jagger, has been fighting ejection from her $4,600-a-month Manhattan apartment for more than three years.
Jagger moved out of the apartment temporarily several years ago, saying it has mold and was uninhabitable; she has been staying in hotels when in New York. A separate $20 million personal injury and property suit she filed in 2003 against her landlord, Katz Park Ave. Corp., is pending in Manhattan Supreme Court.
Katz argued in the Court of Appeals that Jagger's status as a British citizen in this country on a B-2, or tourist, visa means she cannot legally qualify for rent-stabilized status. It has sought her ejection from the unit since her lease expired in 2005.
A 6-0 court Thursday sided with Katz.
The judges reasoned that an irreconcilable contradiction is posed by a foreign national on a tourist visa, which are given out under the federal Immigration and Nationality Act to those "having a residence in a foreign country which he has no intention of abandoning," and New York City laws requiring tenants to live in their "primary residence" in order to qualify for rent-stabilization price controls on their apartments.
Jagger, a native of Nicaragua who is a citizen of the United Kingdom and has an apartment in London, did not submit any evidence about what her primary residence is or otherwise attempt to resolve the inconsistency between having a tourist visa and a rent-stabilized apartment, Judge Robert S. Smith wrote for the court Thursday in Katz Park Avenue Corp. v. Jagger, 141.
"We conclude that, at least absent some unusual circumstance, a primary residence in New York and a B-2 visa are logically incompatible," Smith wrote. "No such unusual circumstance exists here."
He conceded there may be "rare cases" where a tenant could show that her principal dwelling place for immigration purposes is in one place and her primary residence for rent-regulation purposes is in another. But the judge wrote that Jagger did not even try to make that argument, or to show that her B-2 visa was issued in error or had expired.
Because the court does not have to settle the question in the Jagger case, Smith wrote that it would not consider whether "someone who is in the United States illegally may have a primary residence in New York for rent regulation purposes."
In a concurring decision, Judge Carmen Beauchamp Ciparick took exception with the majority's finding that having a primary residence in New York and holding a B-2 visa are "logically incompatible."
She wrote that she does not believe that holding a tourist visa or a B-1 visa, given to foreign nationals working in the United States, automatically precludes people from maintaining a primary residence under New York's rent-stabilization laws.
However, Ciparick held that due to Jagger's "sporadic and tenuous" ties to the occupancy of her apartment, the fact she has not lived there for three years, her not having filed New York state tax returns and other indications of nonresidency, the court properly upheld the granting of summary judgment in the ejection action against Jagger.
The court's ruling Thursday affirmed a 3-2 ruling in Katz Park Avenue Corp. v. Jagger, 46 AD3d 186 (2007), in which the majority of the Appellate Division, 1st Department, took the same view as the judges did Thursday that people in the United States on tourist visas cannot also claim a "primary residence" in New York to qualify for rent regulation.
The 1st Department ruling had reversed a finding by Manhattan Supreme Court Justice Leland DeGrasse denying Katz's motion for summary judgment on its ejection petition.
Katz Park Avenue Corp. has estimated the fair-market value of the two-bedroom apartment, which is on Park Avenue near 61st Street, at $8,800 a month.
The personal injury and property damage suit Jagger filed in September 2003 is pending. Earlier this month, New York Supreme Court Justice Doris Ling-Cohan in Manhattan admonished Jagger and the defendants, including the apartment's former owner, for making "little or no progress ... towards the completion of discovery" and threatened to dismiss the case unless discovery was completed and a note of issue filed by Jan. 8, 2009.
While the judge acknowledged in Jagger v. Katz Park Avenue Corp., 602947/03, that the parties might find her directive "harsh," she nonetheless ordered the litigants to submit an affirmation "made under penalty of perjury" if they did not adhere to her discovery schedule. Failure to supply such an affirmation, "[i]f discovery is not completed as ordered" would result in an inference of "willful and contumacious conduct," the judge warned.
Jagger's attorney in the personal injury case, Daniel Bryson of Lewis & Roberts, said his client lived in the apartment for about 17 years.
"Jagger faithfully paid rent for many, many years and it was only after she initiated litigation for terrible water and mold problems did the landlord initiate this nonprimary proceeding," Bryson said in an interview.
Roger D. Olson of the Law Office of Roger Olson argued for Jagger before the Court of Appeals.
Magda L. Cruz of Belkin Burden Wenig & Goldman represented Katz.
"We are very gratified that the Court of Appeals recognized that the purposes and the policies of the rent-stabilization law are not advanced by granting regulatory advantages to persons who cannot lawfully occupy apartments as primary residences," Cruz said Thursday.
Jagger, 58, was married to Mick Jagger from 1971 to 1980. They had one daughter, Jade, now an interior designer.
Chief Judge Judith S. Kaye took no part in the ruling.
