The temporary administrator, a son of the decedent who petitioned for letters of administration on the consent of the decedent's spouse with a return date of process of October 17, 2011, moved by order to show cause seeking to restrain and preliminarily enjoin a daughter of the decedent from withdrawing funds, including but not limited to, a specified joint bank account she held with the decedent at Ponce De Leon Bank. The decedent died on July 28, 2011. His distributees are a spouse and 14 children, four of whom are children with the spouse, including the respondent daughter. The funds held in the joint bank account are alleged to constitute the sole asset of the estate.

According to the petitioner and the spouse, the joint account was for convenience only, but the daughter claims it was a joint account with right of survivorship, notwithstanding that the annexed account signature card fails to indicate any right of survivorship and lists only the decedent "or" the daughter. The daughter's claim of a survivorship right is evidenced by correspondence from the petitioner's attorney, dated August 18, 2011 and August 19, 2011 to the attorney for the daughter, and responding correspondence from her attorney on August 25, 2011. The order to show cause signed by the court temporarily restrained the daughter, pending a hearing on the return date, from further drawing down on funds in the joint account at issue if such withdrawal would cause the account balance to be less than $108,594.00, representing the approximate elective share of the spouse based on the amount of funds then claimed to be in the joint account.

Jurisdiction was obtained over the daughter who failed to appear on the return date. On that date, the petitioner's counsel noted that after the submission of the order to show cause, he learned that since the date of the decedent's death the daughter had withdrawn a total of approximately [*2]$358,000 from the joint account which is now closed, and he requested that the court grant broader relief enjoining the daughter from transferring or disposing of all funds previously held in that account, no matter where those funds are now located. In support, he submitted a transaction sheet for the account revealing withdrawals of almost all of the funds in the account from August 3, 2010 to August 19, 2011, the period during which the attorneys for the petitioner and daughter were exchanging correspondence on the issue.

To be entitled to a preliminary injunction, the petitioner must establish by clear and convincing evidence: (1) the likelihood of success on the merits; (2) irreparable harm absent the granting of the preliminary injunction; and, (3) a balancing of the equities in the petitioner's favor (see Aetna Ins. Co. v Capasso, 75 NY2d 860 [1990]; W.T. Grant Co. v Srogi, 52 NY2d 496, 517 [1981]; Casita LP v MapleWood Equity Partners (Offshore) Ltd., 43 AD3d 260 [2007]). "The purpose of a preliminary injunction is to maintain the status quo and prevent the dissipation of property that could render a judgment ineffectual" (Ying Fung Moy v Hohi Umeki, 10 AD3d 604 [2004]). Injunctive relief is not generally available where a party may be fully recompensed with a monetary award (see Busters Cleaning Corp. v Frati, 180 AD2d 705 [1992], appeal dismissed 203 AD2d 409 [1994]).

Here, the petitioner has demonstrated a clear likelihood of success on the merits, as the signature card for the joint account does not contain any survivorship language, thereby prima facie entitling the daughter, at best, to only one-half of the joint account; moreover, if the petitioner prevails on the claim that the decedent held the account jointly with the daughter for convenience only, the daughter, who did not oppose the instant application, will be liable for the entire amount she withdrew from the account (see Banking Law § 675 [b]; see also Matter of Kleinberg v Heller, 38 NY2d 836 [1976]; Matter of Corcoran, 63 AD3d 93 [2009]; Matter of Klecar, 207 AD2d 732 [1994]; Matter of Timoshevich, 133 AD2d 1011 [1987]). The petitioner also demonstrated the estate will suffer irreparable injury and a balancing of the equities in his favor, as the alleged assets of the estate were entirely withdrawn and transferred by the daughter at a time when she was fully cognizant of the estate's claim of right thereto through the decedent, another joint account holder through which the estate makes its claim of right (cf. Credit Agricole Indosuez v Rossiyskiy Kredit Bank, 94 NY2d 541 [2000]). Thus, the status quo should be maintained and the alleged assets of the estate preserved pending a determination of the competing claims of entitlement to the funds at issue.

Accordingly, this decision constitutes the order of the court continuing and expanding the temporary restraint on the respondent daughter to encompass all funds previously held at the joint account at the Ponce De Leon Federal Bank since the date of the decedent's death on July 28, 2011, pending the posting of an undertaking and the service on her of a copy of the order with notice of entry granting the preliminary injunction. The petitioner shall post an undertaking in the amount of $35,000 (see CPLR 6312 [b]). Notwithstanding the failure of the respondent daughter to appear, the petitioner shall serve on her a copy of this decision and order upon posting the aforesaid bond, and shall settle upon her an order preliminarily enjoining her from transferring or disposing of any funds previously held in the joint bank account at the Ponce De Leon Bank from the date of the decedent's death to the final disposition of the ownership issue in the SCPA 2103 or other appropriate proceeding to be commenced by the petitioner expeditiously.

Settle order granting preliminary injunction as directed herein. [*3]

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SURROGATE

Lee L. Holzman