Nederlander v. Nederlander

• Decision Date: 03 January 2013
• Citation: 102 A.D.3d 416,958 N.Y.S.2d 45,2013 N.Y. Slip Op. 00023
• Parties: Lindsey Kupferman NEDERLANDER, Plaintiff–Respondent, v. Eric NEDERLANDER, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

102 A.D.3d 416
958 N.Y.S.2d 45
2013 N.Y. Slip Op. 00023

Lindsey Kupferman NEDERLANDER, Plaintiff–Respondent,
v.
Eric NEDERLANDER, Defendant–Appellant.

Supreme Court, Appellate Division, First Department, New York.

Jan. 3, 2013.

[958 N.Y.S.2d 46]

Teitler & Teitler LLP, N.Y. (John M. Teitler of counsel), for appellant.

Cohen Rabin Stine Schumann LLP, New York (Bonnie E. Rabin of counsel), for respondent.

SWEENY, J.P., SAXE, RICHTER, ABDUS–SALAAM, ROMÁN, JJ.

[102 A.D.3d 416]Order, Supreme Court, New York County (Deborah A. Kaplan, J.), entered on or about April 17, 2012, which, to the extent appealed from, ordered defendant to pay 50% of the balances owed on the mortgages on the marital residence in the event that he is unable to refinance the mortgages or obtain extensions of the mortgage notes, unanimously affirmed, without costs.

Domestic Relations Law (DRL) § 234 empowers the court to “make such direction, between the parties, concerning the possession of property, as in the court's discretion justice requires having regard to the circumstances of the case and of the respective parties.” Accordingly, pursuant to DRL § 234, the court can not only order that a party turn over marital property, but also that he or she refrain from transferring or disposing of it ( Leibowits v. Leibowits, 93 A.D.2d 535, 537, 462 N.Y.S.2d 469 [2d Dept.1983] ). The power to issue preliminary injunctions affecting property in divorce actions stems from the recognition that while spouses have no legal or beneficial interest in marital property prior to a judgment of divorce, they nevertheless have an expectancy in that property ( see id. at 540–545, 462 N.Y.S.2d 469 [O'Connor, J. concurring] ). Thus, in order to protect that expectancy pending equitable distribution, to maintain the status quo, and to prevent the dissipation of marital property, the court must be able to issue orders to ensure that such marital property is protected should it later become the subject of equitable distribution ( id.;Rosenshein v. Rosenshein, 211 A.D.2d 456, 456, 620 N.Y.S.2d 383 [1st Dept.1995];Drazal v. Drazal, 122 A.D.2d 829, 831, 505 N.Y.S.2d 703 [2d Dept.1986] ).

Here, contrary to defendant's assertion, the motion court's order, insofar as it ordered defendant to pay 50% of the balances owed on the mortgages on the marital residence in the event that he is unable to refinance the mortgages or obtain extensions of the mortgage notes, was a proper exercise of its discretion pursuant to DRL...