Both parties are restrained and enjoined from selling, transferring, hypothecating or otherwise disposing of or encumbering any marital asset or any interest therein, including, but not limited to, the Dean Witter account no. 174534-08, Washington Public Power System Supply Systems bonds and shares of Instrument Systems maintained in Dean Witter accounts, except in the ordinary course of business or personal affairs and for full value. Leibowits v. Leibowits, 93 A.D.2d 535, 462 N.Y.S.2d 469 (2d Dep't 1983). Mr. Vasile has provided a letter indicating that he notified Dean Witter of the court order restricting account activity.
However, neither spouse obtains an equitable interest in property held by the other merely because the property falls within the definition of "marital property." See In re Frederes, 141 B.R. 289, 291-92 (Bankr.W.D.N.Y.1992); In re Hilsen, 100 B.R. 708, 711 (Bankr.S.D.N.Y.1989), rev'd on other grounds, 119 B.R. 435, 438 (S.D.N.Y.1990) (citing Leibowits v. Leibowits, 93 A.D.2d 535, 462 N.Y.S.2d 469, 478 (N.Y.App.Div. 1983)). Nor do rights vest even upon the commencement of a matrimonial action.
Id. (footnotes omitted). Musso v. Ostashko, 468 F.3d at 107 ( citing Leibowits v. Leibowits, 93 A.D.2d 535, 462 N.Y.S.2d 469, 473 (N.Y.App.Div.1983) (emphasis in original)). The spouse has no “inchoate, prejudgment” interest in the property, but is in fact a judgment creditor, and as to third parties, that spouse's right to the property is only cemented upon entry of the judgment.
Sperber v. Schwartz, 139 A.D.2d 640, 527 N.Y.S.2d 279 (2d Dep't 1988) (emphasis in original). In Leibowits v. Leibowits, 93 A.D.2d 535, 462 N YS.2d 469, 478 (2d Dep't 1983) (O'Connor, J., concurring), Justice O'Connor noted that " at no point prior to judgment does the new law itself create any contingent or present vested interests, legal or equitable, by virtue of the parties' marital status or prior to a judgment dissolving their union." (emphasis added).
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] ).
We agree and accordingly affirm. In a matrimonial action, Special Term, under the proper circumstances, has the authority to issue preliminary injunctions aimed at the preservation of the marital assets pending equitable distribution (see, Monroe v Monroe, 108 A.D.2d 793; Carella v Carella, 106 A.D.2d 601, 603; Leibowits v Leibowits, 93 A.D.2d 535; Domestic Relations Law § 234). This authority derives from a recognition that with the emergence of the equitable distribution law, the financial status quo of the parties, as it existed at the time of the commencement of the action, "should be maintained until and unless a court has had a proper and fair opportunity to appraise the evidence presented" (Froelich-Switzer v Switzer, 107 Misc.2d 814, 815).
nt to CPLR 6301, the movant must show (1) she was likely to succeed on the merits (2) would suffer irreparable harm absent interim injunctive relief and (3) the balance of the equities were in her favor (seeSilva v. Silva , 27 Misc 3d 526, 530—31, 895 NYS2d 704, 708 [Sup Ct, Nassau County 2010] ; Evans—Freke v. Showcase Contracting Corp., 3 AD3d 549, 770 NYS2d 640 [2d Dept 2004] ; Greystone Staffing, Inc. v. Warner , 106 AD3d 954, 965 NYS2d 599 [2d Dept 2013] quoting Yedlin v. Lieberman , 102 AD3d 769, 961 NYS2d 186 [2d Dept 2013] ; Pudalov v. Pudalov , 6 Misc 3d 558, 561, 786 NYS2d 729, 732 [Sup Ct, Westchester County 2004] ; see also CPLR § 6301 ). In matrimonial actions, Domestic Relations Law ("DRL") § 234 also allows a court to issue pendente lite injunctive relief without requiring that the movant make the requisite showing required by CPLR Article 63; namely irreparable harm and a likelihood of success on the merits (seeTaft v. Taft, 156 AD2d 444, 548 NYS2d 726 [2d Dept 1989] ; Leibowits v. Leibowits, 93 AD2d 535, 462 NYS2d 469 [2d Dept 1983] ). When making a determination pursuant to DRL § 234, a court has broad discretion to issue orders which it deems are in the interest of justice concerning marital property ( Taft , 156 AD2d at 446 ).
In its description of New York's law on marital property and equitable distribution, the Second Circuit relies upon a concurring opinion in the Second Department's decision in Leibowits v Leibowits ( 93 AD2d 535, 538 [2d Dept 1983, O'Connor, J., concurring]; see Musso v Ostashko, 468 F3d at 105). Leibowits concerned the scope of section 234 of the Domestic Relations Law, which provides authority for the issuance of an order regarding marital property during the pendency of a divorce action.
In its description of New York's law on marital property and equitable distribution, the Second Circuit relies upon a concurring opinion in the Second Department's decision in Leibowits v Leibowits (93 AD2d 535, 538 [2d Dept 1983, O'Connor, J., concurring]; see Musso v Ostashko, 468 F3d at 105). Leibowits concerned the scope of section 234 of the Domestic Relations Law, which provides authority for the issuance of an order regarding marital property during the pendency of a divorce action.
Such possession continues to be derived from judicial enforcement of the excluded spouse's obligation rather than from a judicial declaration vesting in the benefited spouse a property right in rem in the home." (Leibowits v. Leibowits, 93 A.D.2d 535, 551-552 [O'Connor, J., concurring].)