By MICHAEL VIRTANEN
Associated Press

ALBANY - New York's top court upheld Bianca Jagger's eviction from a rent-stabilized Manhattan apartment, concluding Oct. 23 that foreigners on tourist visas generally can't claim New York digs as a "primary residence."

The British human-rights activist and ex-wife of Rolling Stones singer Mick Jagger was evicted in December from the Upper East Side apartment she rented for 20 years. She hasn't lived in the apartment for the past few years because of a dispute over asbestos and fungus contamination that led to a lawsuit against landlord Katz Park Avenue Corp.

"There are still claims for legal fees and unpaid rent and use and occupancy," said attorney Magda Cruz, the landlord's lawyer. She said there's no way of knowing how many New York tenants on tourist visas might be affected by the ruling, since tenants generally don't disclose their visa status when they rent.

Jagger's lawyer, Dan Bryson, said they were disappointed, but the case against the landlord over water and mold damage should reach trial court next spring.

"It took her filing suit to get them to come in and fix the apartment," Bryson said.

Jagger was renting the 18th-floor Park Avenue space for $4,614 a month when a judge imposed a fine in 2006 and ordered her to pay months of back rent, though she said the apartment was uninhabitable because of the contamination. The apartment has since been leased to another tenant.

As that dispute wore on, the landlord evicted Jagger, saying she wasn't entitled to rent-control protections.

Court of Appeals Judge Hon. Robert Smith wrote that Jagger failed to explain how she could have a valid tourist visa and a primary residence in New York City.

"Perhaps there are 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 (the) defendant has not even tried to make such a showing," he wrote.

New York City's Rent Stabilization Code allows landlords to reclaim an apartment after the lease expires if it isn't occupied as a primary residence, which has been defined in case law as "an ongoing, substantial, physical nexus with the ... premises for actual living purposes," Smith wrote.

Because she holds a B2 visa, Jagger is required to have a "principal, actual dwelling place" outside the United States. A native of Nicaragua and now a British citizen, she keeps an apartment in London.

"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," Smith wrote. Hon. Victoria Graffeo, Hon. Susan Phillips Read, Hon. Eugene Pigott Jr. and Hon. Theodore Jones Jr. agreed. Chief Judge Hon. Judith Kaye recused herself from the case without explanation.

In a concurring opinion, Hon. Carmen Beauchamp Ciparick cited unchallenged evidence that Jagger's ties to the apartment were "sporadic and tenuous" and that Jagger admitted she had not occupied it for three years. However, Ciparick wrote that immigration status should not define someone's rights under the rent-stabilization laws, especially since those on tourist visas can get extensions.