Landlord & Tenant

Court of Appeals

(6-0 decision; majority opinion by Smith, J; concurring opinion by Ciparick, J.)

In landlord's non-primary residence proceeding, tenant appealed from the Appellate Division's reversal of Supreme Court's denial of landlord's summary judgment motion. The Court of Appeals affirmed, holding that in the absence of unusual facts, tenant's B2 tourist visa, which requires that her “principal, actual dwelling place” be outside the United States, establishes that her primary residence is not in her rent-stabilized New York apartment.

Tenant, Bianca Jagger, is a British citizen who holds a B2 tourist visa. Her landlord brought this non-primary residence proceeding, relying on the terms of the tourist visa to establish that tenant did not maintain her primary residence in the apartment. The Supreme Court denied landlord's summary judgment motion, concluding that domicile and residence are not equivalent, and that the tourist visa might have established that tenant's domicile was abroad even while her primary residence was in New York. A divided Appellate Division reversed, and tenant appealed.

In affirming, the Court of Appeals concluded that the distinction between domicile and residence was irrelevant because neither tenant's status under the immigration laws nor under the rent regulation laws depended on domicile. The court concluded that absent unusual circumstances, a primary residence in New York and a B2 tourist visa are logically incompatible, and emphasized that tenant had submitted no evidence to refute the statement in her tourist visa. As a result, landlord was entitled to summary judgment. Judge Ciparick, concurring in result, agreed that tenant's primary residence was in New York, but preferred to rely on a combination of factors rather than relying on the B2 visa alone.

Loft Premises Not Subject to ETPA

Caldwell v. American Package Co.

NYLJ 10/29/08, p. 31, col. 1

AppDiv, Second Dept.

(Opinion by Spolzino, J.)

In an action by loft tenants for a judgment declaring that they are entitled to the protections of the Emergency Tenants Protection Act of 1974 (ETPA), both parties appealed from a Supreme Court order declaring that the tenancy was not subject to the ETPA, and awarding landlord use and occupancy from July 6, 2006, until tenant surrenders the premises. The Appellate Division modified to deny use and occupancy to the landlord, holding that loft premises are not subject to the ETPA, but that landlord may not recover use and occupancy for premises occupied as residential premises in violation of the Multiple Dwelling Law.

In 2003, tenants took possession of the subject premises pursuant to a lease that provided that the premises would be used for commercial purposes in conformity with the certificate of occupancy. In 2005, landlord served tenants with a notice to cure, alleging that tenants were occupying the premises for residential purposes in violation of the terms of the lease. Tenants then brought this declaratory judgment action, asserting that they were protected by the ETPA, and that landlords were obligated to offer them a renewal lease and to register the building as a multiple dwelling. The Supreme Court granted tenant a Yellowstone injunction tolling the cure period pending resolution of the subject dispute, and then concluded that tenant was not entitled to the protection of the ETPA, and that landlord was entitled to use and occupancy for the time between July 6, 2006, and tenant's surrender of the premises. Both parties appealed.

In modifying, the court first upheld the Supreme Court's determination that the subject unit was not subject to the ETPA. The court relied on Wolinsky v. Kee Yip Realty, 2 N.Y. 3d 487. The court then held that Multiple Dwelling Law '302 precludes a landlord from recovering use and occupancy when landlord knew or should have known that premises were being used for residential purposes in violation of the applicable certificate of occupancy. As a result, the court held that the Supreme Court erred in awarding landlord use and occupancy. The court went on to hold that landlord would be entitled to eject tenant from the premises, but not until tenants were afforded an opportunity to cure, presumably by converting their use to commercial use in conformity with the lease and the certificate of occupancy.

Tenant with Tourist Visa Cannot Maintain Primary Residence in New York Apartment

Katz Park Avenue Corp. v. Jagger

NYLJ 10/24/08, p. 28, col. 3

Court of Appeals

(6-0 decision; majority opinion by Smith, J; concurring opinion by Ciparick, J.)

In landlord's non-primary residence proceeding, tenant appealed from the Appellate Division's reversal of Supreme Court's denial of landlord's summary judgment motion. The Court of Appeals affirmed, holding that in the absence of unusual facts, tenant's B2 tourist visa, which requires that her “principal, actual dwelling place” be outside the United States, establishes that her primary residence is not in her rent-stabilized New York apartment.

Tenant, Bianca Jagger, is a British citizen who holds a B2 tourist visa. Her landlord brought this non-primary residence proceeding, relying on the terms of the tourist visa to establish that tenant did not maintain her primary residence in the apartment. The Supreme Court denied landlord's summary judgment motion, concluding that domicile and residence are not equivalent, and that the tourist visa might have established that tenant's domicile was abroad even while her primary residence was in New York. A divided Appellate Division reversed, and tenant appealed.

In affirming, the Court of Appeals concluded that the distinction between domicile and residence was irrelevant because neither tenant's status under the immigration laws nor under the rent regulation laws depended on domicile. The court concluded that absent unusual circumstances, a primary residence in New York and a B2 tourist visa are logically incompatible, and emphasized that tenant had submitted no evidence to refute the statement in her tourist visa. As a result, landlord was entitled to summary judgment. Judge Ciparick, concurring in result, agreed that tenant's primary residence was in New York, but preferred to rely on a combination of factors rather than relying on the B2 visa alone.

Loft Premises Not Subject to ETPA

Caldwell v. American Package Co.

NYLJ 10/29/08, p. 31, col. 1

AppDiv, Second Dept.

(Opinion by Spolzino, J.)

In an action by loft tenants for a judgment declaring that they are entitled to the protections of the Emergency Tenants Protection Act of 1974 (ETPA), both parties appealed from a Supreme Court order declaring that the tenancy was not subject to the ETPA, and awarding landlord use and occupancy from July 6, 2006, until tenant surrenders the premises. The Appellate Division modified to deny use and occupancy to the landlord, holding that loft premises are not subject to the ETPA, but that landlord may not recover use and occupancy for premises occupied as residential premises in violation of the Multiple Dwelling Law.

In 2003, tenants took possession of the subject premises pursuant to a lease that provided that the premises would be used for commercial purposes in conformity with the certificate of occupancy. In 2005, landlord served tenants with a notice to cure, alleging that tenants were occupying the premises for residential purposes in violation of the terms of the lease. Tenants then brought this declaratory judgment action, asserting that they were protected by the ETPA, and that landlords were obligated to offer them a renewal lease and to register the building as a multiple dwelling. The Supreme Court granted tenant a Yellowstone injunction tolling the cure period pending resolution of the subject dispute, and then concluded that tenant was not entitled to the protection of the ETPA, and that landlord was entitled to use and occupancy for the time between July 6, 2006, and tenant's surrender of the premises. Both parties appealed.

In modifying, the court first upheld the Supreme Court's determination that the subject unit was not subject to the ETPA. The court relied on Wolinsky v. Kee Yip Realty , 2 N.Y. 3d 487. The court then held that Multiple Dwelling Law '302 precludes a landlord from recovering use and occupancy when landlord knew or should have known that premises were being used for residential purposes in violation of the applicable certificate of occupancy. As a result, the court held that the Supreme Court erred in awarding landlord use and occupancy. The court went on to hold that landlord would be entitled to eject tenant from the premises, but not until tenants were afforded an opportunity to cure, presumably by converting their use to commercial use in conformity with the lease and the certificate of occupancy.