She's gotta go home again.

Pursuant to a written lease, defendant is the tenant of an apartment in plaintiff's building. Plaintiff served a notice of nonrenewal, citing nonprimary residence, and commenced an action for ejectment. Defendant moved to dismiss, asserting that plaintiff had served her with a notice of renewal before it served notice of nonrenewal, and that she executed the lease and submitted it to plaintiff approximately one month later. Plaintiff cross-moved for summary judgment, arguing that the tenant is a British citizen who entered the United States on a B-2 tourist visa, and is thus statutorily barred from maintaining a permanent residence in the United States.

The First Department granted plaintiff's summary judgment motion, in Katz Park Avenue Corp. v. Jagger, which was decided on October 18, 2007. The court noted that a landlord may recover a rent-controlled apartment which is not occupied as the tenant's primary residence, and said that primary residence is an ongoing, substantial, physical nexus with the controlled premises for actual living purposes, which can be demonstrated by objective, empirical evidence.

Here, said the court, tenant concedes that she is a citizen of the United Kingdom, and therefore, to the extent she resides in the United States, she does so as a nonimmigrant on a B-2 tourist visa, which requires her to maintain a permanent residence outside the United States that she has no intention of abandoning.

The court said that, even if it were to conclude that the holder of a B-2 tourist visa is not necessarily precluded from maintaining a primary residence in a rent stabilized apartment, this record is devoid of any evidence supporting this tenant's primary residence claim or showing that she is in the United States as anything other than a temporary visitor.

Two judges dissented, finding a fact question as to primary residence. They argued that plaintiff's immigration status -- albeit not permanent -- may be extended and therefore could well result in a protracted stay. If the lease is for only one year, the immigration status is not enough to summarily deny that this is a primary residence for leasehold purposes.