Weinstock v. Weinstock, s. 04-201800

Citation797 N.Y.S.2d 246,8 Misc.3d 221,2005 NY Slip Op 25134
Decision Date27 January 2005
Docket NumberNos. 04-201800,s. 04-201800
PartiesED WEINSTOCK, Plaintiff, v. LINDA WEINSTOCK, Defendant.
CourtUnited States State Supreme Court (New York)

Jerome Wisselman, Great Neck, for defendant.

Dianna Lemieux, Mineola, for plaintiff.

OPINION OF THE COURT

JOSEPH P. SPINOLA, J.

Defendant wife moves for an order granting the following relief: (1) restraining and enjoining the plaintiff from mortgaging, refinancing, and/or increasing the home equity line of creditor debt on the marital residence located at 10 Overlook Drive, Port Washington, New York, and (2) restraining and enjoining the plaintiff from disposing of, selling, transferring, liquidating, encumbering, or in any manner diminishing any marital assets, including but not limited to any interest in plaintiff's business, to wit: Fuel Digital, Inc., or any other business in which plaintiff has an interest, other than for ordinary day-to-day living expenses.

Plaintiff husband cross-moves for an order granting leave to refinance the existing mortgage on the marital residence located at 10 Overlook Drive, Port Washington, New York, and directing defendant to cooperate therein and an order permitting the plaintiff to trade and/or reinvest in marital investment accounts "in the course of prudent investing."

Plaintiff first seeks an order granting leave to refinance the existing mortgage on the marital residence and directing the defendant to execute any documents necessary to secure refinancing of the loan on the marital premises.

The marital home was purchased with a mortgage interest rate of 7.5%. Refinancing at the anticipated rate of 5.5% will reduce the parties' monthly payment. Defendant opposes the refinancing asserting that same will deplete the equity in the marital residence.

It is the court's opinion that defendant's position is untenable. The residence is undeniably a marital asset. As there are no minor children of the marriage, the only issues in the instant matter include the distribution of the marital assets. However, the defendant, by refusing to consent to refinance the existing mortgage on the marital residence, is reducing the value of distributable assets.

Without question, the law favors the preservation of marital assets and the court is empowered to protect and preserve marital assets for equitable distribution, especially where loss or dissipation would result. (Domestic Relations Law § 234; Rosenshein v Rosenshein, 211 AD2d 456 [1st Dept 1995]; Nebot v Nebot, 139 AD2d 635 [2d Dept 1988].)

The gravamen of plaintiff's motion is an application for affirmative injunctive relief to prevent the wasting of assets. It is plaintiff's position that refinancing the existing mortgage on the marital residence would preserve the marital assets as the monthly payment of same would be significantly reduced and to prevent same would amount to wasteful dissipation. The court...

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6 cases
  • D.D. v. A.D.
    • United States
    • United States State Supreme Court (New York)
    • June 16, 2017
    ...was granted authority to sign a loan modification in both parties' names as attorney in fact for Husband. See Weinstock v. Weinstock, 8 Misc.3d 221, 797 N.Y.S.2d 246 (Sup.Ct. Nassau Ct.2005) ; See also, Rosenshein v. Rosenshien, 211 A.D.2d 456, 620 N.Y.S.2d 383 (1st Dept.1995). Wife modifie......
  • El-Dehdan v. El-Dehdan
    • United States
    • New York Court of Appeals
    • October 20, 2015
    ...for divorce the court may determine any question as to the title to property arising between the parties”]; Weinstock v. Weinstock, 8 Misc.3d 221, 223, 797 N.Y.S.2d 246 [Sup.Ct., Nassau County 2005] [“Section 234 of the Domestic Relations Law specifically empowers the court to determine any......
  • El-Dehdan v. El-Dehdan
    • United States
    • New York Court of Appeals
    • October 20, 2015
    ...N.Y.3d 33divorce the court may determine any question as to the title to property arising between the parties”]; Weinstock v. Weinstock,8 Misc.3d 221, 223, 797 N.Y.S.2d 246 [Sup.Ct., Nassau County 2005][“Section 234 of the Domestic Relations Lawspecifically empowers the court to determine a......
  • Nederlander v. Nederlander
    • United States
    • New York Supreme Court Appellate Division
    • January 3, 2013
    ...in ordering defendant to cooperate in obtaining an extension of the loans and/or a refinancing of the loans ( see Weinstock v. Weinstock, 8 Misc.3d 221, 797 N.Y.S.2d 246 [2005] [defendant directed to cooperate and execute the documents necessary to secure refinancing of the loan on the mari......
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