Pompea v Cestra 2025 NY Slip Op 30357(U) January 29, 2025 Supreme Court, New York County Docket Number: Index No. 155944/2024 Judge: Lyle E. Frank Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 155944/2024 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 01/29/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LYLE E. FRANK PART 11M Justice ----------------------------------------------------------------- ----------------X INDEX NO. 155944/2024 CHARLES POMPEA, TAMERA POMPEA MOTION DATE 10/18/2024 Plaintiff, MOTION SEQ. NO. 001 - V -
RONALD CESTRA, DECISION + ORDER ON MOTION Defendant. ------------------------------------------------------------------- --------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18,22,23,24,25,26,27,28,29,30, 31,32, 33,35, 36, 37 were read on this motion to/for PARTIAL SUMMARY JUDGMENT
Upon the foregoing documents, plaintiffs motion is granted.
Background
Charles and Tamera Pompea (collectively, the "Plaintiffs") own a luxury condominium
unit in Manhattan. When their daughter Amy married Ronald Cestra ("Defendant") and the
couple had a son, Plaintiffs allege that they offered to let the married couple reside in the
apartment for free for two years in order to build up a nest egg. During this time and to date,
Plaintiffs have paid all taxes, utilities, and maintenance fees on the property. They also allege
that the plan had long been to sell the apartment at the end of the two years. For his part,
Defendant alleges that the understanding was that the apartment was to be the "matrimonial
residence" and claims that Plaintiffs have not adequately proven that there was a pre-understood
two-year license.
Amy and Defendant are currently in the process of negotiating a divorce and custody of
their child. Plaintiffs have requested that both parties leave the apartment, but to date only Amy
has moved out. In April of 2024, Plaintiffs served Defendant a IO-day Notice to Quit, informing 155944/2024 POMPEA, CHARLES ET AL vs. CESTRA, RONALD Page 1 of 6 Motion No. 001
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him that his license to stay in the apartment for free was being terminated. Defendant refuses to
leave, arguing that to do so would interfere with the ongoing matrimonial dispute. Plaintiffs have
responded by filing the underlying lawsuit, with causes of action requesting an ejectment of
Defendant, Use and Occupancy for the holdover time after the expiration of the Notice to Quit, a
declaration that Defendant's time to stay in the apartment has expired and that he has no valid
interest in the apartment, a preliminary injunction removing Defendant, and alleging prima facie
tort and tortious interference. Defendant has answered, and Plaintiff brings the present motion
seeking partial summary judgment.
Standard of Review
Under CPLR § 3212, a party may move for summary judgment and the motion "shall be
granted if, upon all the papers and proof submitted, the cause of action or defense shall be
established sufficiently to warrant the court as a matter of law in directing judgment in favor of
any party." CPLR § 3212(b). Once the movant makes a showing of a prima facie entitlement to
judgment as a matter of law, the burden then shifts to the opponent to "produce evidentiary proof
in admissible form sufficient to establish the existence of material issues of fact which require a
trial of the action." Stonehill Capital Mgt. LLC v. Bank of the W, 28 N.Y.3d 439, 448 (2016).
The facts must be viewed in the light most favorable to the non-moving party, but conclusory
statements are insufficient to defeat summary judgment. Id
Discussion
Plaintiff has moved for partial summary judgment on the ejectment and use and
occupancy causes of action. Defendant opposes. For the reasons that follow, Plaintiffs have met
their burden on a summary judgment motion and Defendant has in tum failed to establish a
material issue of fact.
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There Are No Triable Issues ofFact Regarding Plaintiffs' Entitlement to a Judgment of
Eiectment
In order to establish prima facie entitlement to an ejectment action, a plaintiff must show
1) ownership of the real property, 2) a present right to possession, and 3) defendant is in present
possession of the estate. Noamex, Inc. v. Domesy Worldwide, Ltd, 192 A.D.3d 817,819 (2nd
Dept. 2021 ). The first and third elements are not in dispute here. Defendant appears to be
disputing the second element by arguing that the ongoing matrimonial dispute means that
Plaintiffs have no ability to eject him from the apartment. He cites to Rosenstiel as support for
the argument that he is not a licensee. In that case, the issue was whether after a separation, if a
husband who owned the marital home could eject the wife who was not on the deed. Rosenstiel
v. Rosenstiel, 20 A.D.2d 71, 73 (1st Dept. 1963). The court there held that "a wife, in her
occupation of the marital home, would not ordinarily be considered to be using the same in the
status of the 'licensee' of her husband." Id, at 77.
But here, Defendant is not a licensee of his spouse, but rather a licensee of two non-
parties to the matrimonial action. The apartment is not marital property and cannot be awarded to
one party or another by the matrimonial court. Defendant has not provided evidence of a triable
issue of fact on whether or not he is entitled to remain indefinitely in an apartment that he pays
nothing for, even after the property owners have revoked the license. While there may be
unfortunate repercussions for Defendant as a result of leaving the apartment, that does not
establish his present right to possession. His lack of right to possession is bolstered by the fact
that to date, Plaintiffs have paid all taxes, utility, and maintenance fees on the apartment, and by
the sworn statement Defendant made in the matrimonial action that he is currently living rent-
free in Plaintiffs apartment and that he is aware that he will need to leave.
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Plaintiffs Have Established a Valid Claim for Use and Occupancy
Plaintiffs have also moved for summary judgment on their claim for use and occupancy
from the expiration of the Notice to Quit in April of 2024 to the date that Defendant surrenders
possession. Even in the absence of a lease or contractual privity, a person staying in a plaintiffs
property is liable for "unpaid reasonable value of use and occupancy. Reasonable value is fair
market value, and it is the landlord's burden, not the tenants, to prove." A&D Family Homes,
LLC v. Herz, 217 N.Y.S.3d 543, 543 (1st Dept. 2024). A court that fixes an amount must have
first received "competent evidence of the reasonable value of the subject property, such as
evidence ofrental agreements for comparable apartments." Id, at 544.
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Pompea v Cestra 2025 NY Slip Op 30357(U) January 29, 2025 Supreme Court, New York County Docket Number: Index No. 155944/2024 Judge: Lyle E. Frank Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 155944/2024 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 01/29/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. LYLE E. FRANK PART 11M Justice ----------------------------------------------------------------- ----------------X INDEX NO. 155944/2024 CHARLES POMPEA, TAMERA POMPEA MOTION DATE 10/18/2024 Plaintiff, MOTION SEQ. NO. 001 - V -
RONALD CESTRA, DECISION + ORDER ON MOTION Defendant. ------------------------------------------------------------------- --------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18,22,23,24,25,26,27,28,29,30, 31,32, 33,35, 36, 37 were read on this motion to/for PARTIAL SUMMARY JUDGMENT
Upon the foregoing documents, plaintiffs motion is granted.
Background
Charles and Tamera Pompea (collectively, the "Plaintiffs") own a luxury condominium
unit in Manhattan. When their daughter Amy married Ronald Cestra ("Defendant") and the
couple had a son, Plaintiffs allege that they offered to let the married couple reside in the
apartment for free for two years in order to build up a nest egg. During this time and to date,
Plaintiffs have paid all taxes, utilities, and maintenance fees on the property. They also allege
that the plan had long been to sell the apartment at the end of the two years. For his part,
Defendant alleges that the understanding was that the apartment was to be the "matrimonial
residence" and claims that Plaintiffs have not adequately proven that there was a pre-understood
two-year license.
Amy and Defendant are currently in the process of negotiating a divorce and custody of
their child. Plaintiffs have requested that both parties leave the apartment, but to date only Amy
has moved out. In April of 2024, Plaintiffs served Defendant a IO-day Notice to Quit, informing 155944/2024 POMPEA, CHARLES ET AL vs. CESTRA, RONALD Page 1 of 6 Motion No. 001
1 of 6 [* 1] INDEX NO. 155944/2024 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 01/29/2025
him that his license to stay in the apartment for free was being terminated. Defendant refuses to
leave, arguing that to do so would interfere with the ongoing matrimonial dispute. Plaintiffs have
responded by filing the underlying lawsuit, with causes of action requesting an ejectment of
Defendant, Use and Occupancy for the holdover time after the expiration of the Notice to Quit, a
declaration that Defendant's time to stay in the apartment has expired and that he has no valid
interest in the apartment, a preliminary injunction removing Defendant, and alleging prima facie
tort and tortious interference. Defendant has answered, and Plaintiff brings the present motion
seeking partial summary judgment.
Standard of Review
Under CPLR § 3212, a party may move for summary judgment and the motion "shall be
granted if, upon all the papers and proof submitted, the cause of action or defense shall be
established sufficiently to warrant the court as a matter of law in directing judgment in favor of
any party." CPLR § 3212(b). Once the movant makes a showing of a prima facie entitlement to
judgment as a matter of law, the burden then shifts to the opponent to "produce evidentiary proof
in admissible form sufficient to establish the existence of material issues of fact which require a
trial of the action." Stonehill Capital Mgt. LLC v. Bank of the W, 28 N.Y.3d 439, 448 (2016).
The facts must be viewed in the light most favorable to the non-moving party, but conclusory
statements are insufficient to defeat summary judgment. Id
Discussion
Plaintiff has moved for partial summary judgment on the ejectment and use and
occupancy causes of action. Defendant opposes. For the reasons that follow, Plaintiffs have met
their burden on a summary judgment motion and Defendant has in tum failed to establish a
material issue of fact.
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There Are No Triable Issues ofFact Regarding Plaintiffs' Entitlement to a Judgment of
Eiectment
In order to establish prima facie entitlement to an ejectment action, a plaintiff must show
1) ownership of the real property, 2) a present right to possession, and 3) defendant is in present
possession of the estate. Noamex, Inc. v. Domesy Worldwide, Ltd, 192 A.D.3d 817,819 (2nd
Dept. 2021 ). The first and third elements are not in dispute here. Defendant appears to be
disputing the second element by arguing that the ongoing matrimonial dispute means that
Plaintiffs have no ability to eject him from the apartment. He cites to Rosenstiel as support for
the argument that he is not a licensee. In that case, the issue was whether after a separation, if a
husband who owned the marital home could eject the wife who was not on the deed. Rosenstiel
v. Rosenstiel, 20 A.D.2d 71, 73 (1st Dept. 1963). The court there held that "a wife, in her
occupation of the marital home, would not ordinarily be considered to be using the same in the
status of the 'licensee' of her husband." Id, at 77.
But here, Defendant is not a licensee of his spouse, but rather a licensee of two non-
parties to the matrimonial action. The apartment is not marital property and cannot be awarded to
one party or another by the matrimonial court. Defendant has not provided evidence of a triable
issue of fact on whether or not he is entitled to remain indefinitely in an apartment that he pays
nothing for, even after the property owners have revoked the license. While there may be
unfortunate repercussions for Defendant as a result of leaving the apartment, that does not
establish his present right to possession. His lack of right to possession is bolstered by the fact
that to date, Plaintiffs have paid all taxes, utility, and maintenance fees on the apartment, and by
the sworn statement Defendant made in the matrimonial action that he is currently living rent-
free in Plaintiffs apartment and that he is aware that he will need to leave.
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Plaintiffs Have Established a Valid Claim for Use and Occupancy
Plaintiffs have also moved for summary judgment on their claim for use and occupancy
from the expiration of the Notice to Quit in April of 2024 to the date that Defendant surrenders
possession. Even in the absence of a lease or contractual privity, a person staying in a plaintiffs
property is liable for "unpaid reasonable value of use and occupancy. Reasonable value is fair
market value, and it is the landlord's burden, not the tenants, to prove." A&D Family Homes,
LLC v. Herz, 217 N.Y.S.3d 543, 543 (1st Dept. 2024). A court that fixes an amount must have
first received "competent evidence of the reasonable value of the subject property, such as
evidence ofrental agreements for comparable apartments." Id, at 544. In support of their
motion, Plaintiffs have submitted a sworn affidavit from Merrill Curtis, a senior global real estate
advisor with Sotheby's. Ms. Curtis states that she has examined the unique features of the
apartment and current market conditions, leading her to believe that the fair market value of the
monthly rental price of the apartment is $22,500.00.
Defendant opposes in part based on the argument that the apartment is marital property.
As explored above, this argument is unavailing. Defendant also opposes the use and occupancy
claim on the grounds that he does not have exclusive occupancy because Amy has asked
Plaintiffs for access to the apartment in the future. But this does not establish a dispute over any
material fact that would defeat Plaintiffs' claim for use and occupancy. Defendant also questions
the expert affidavit provided by Plaintiffs, arguing that he did not have the opportunity to inquire
about the expert's qualifications or the source for her opinions. While Plaintiffs have established
a prima facie entitlement to use and occupancy, and Defendant has not shown a material issue of
fact regarding liability, considering the unique nature of the apartment as pointed out in the
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papers a hearing establishing the amount owed would be helpful. The Court has examined
Defendant's other arguments and found them unavailing. Accordingly, it is hereby
ADJUDGED that the motion of plaintiffs for summary judgment on their second cause of
action for use and occupancy is granted; and it is further
ORDERED that an assessment of damages against defendant Ronald Cestra is directed,
and it is further
ADJUDGED that the motion of plaintiffs for summary judgment on the first cause of action
for ejectment is granted; and it is further
ORDERED and ADJUDGED that plaintiffs are entitled to possession of Condominium
Unit #13D/14D at 140 East 63rd Street, New York, New York as against defendant Ronald Cestra,
and the Sheriff of the City of New York, County of New York, upon receipt of a certified copy of
this Order and Judgment and payment of proper fees, is directed to place plaintiff in possession
accordingly; and it is further
ADJUDGED that immediately upon entry of this Order and Judgment, plaintiff may
exercise all acts of ownership and possession of Condominium Unit #13/14D at 140 East 63rd
Street, New York, New York, including entry thereto, as against defendant Ronald Cestra; and it
is further
ORDERED that the balance of the above-entitled action is severed and continued; and it is
further
ORDERED that a copy of this order with notice of entry be served by the movant upon the
Clerk of the General Clerk's Office, who is directed, upon the filing of a note of issue and a
certificate of readiness and the payment of proper fees, if any, to place this action on the
appropriate trial calendar for the assessment hereinabove directed; and it is further
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ORDERED that such service upon the Clerk of the General Clerk's Office shall be made
in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk
Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's
website).
1/29/2025 DATE LYLE E. FRANK, J.S.C. CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
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