Brienza v. Brienza

213 A.D.2d 364, 624 N.Y.S.2d 866, 1995 N.Y. App. Div. LEXIS 2456

Opinion

—In an action for a divorce and ancillary relief, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Baisley, J.), dated April 7, 1994, which, inter alia, dismissed the action for failure of proof.

Ordered that the order is affirmed, without costs or disbursements.

There is no basis in the record to find that the Supreme Court erred in dismissing the plaintiffs action for divorce based upon constructive abandonment. When the determination of constructive abandonment is premised upon an evaluation of the credibility of the respective witnesses, the determination of the trier of fact, who heard and saw the witnesses, should be accorded great weight (see, Caso v Caso, 161 AD2d 683; Schottenfeld v Schottenfeld, 152 AD2d 690; Infosino v Infosino, 109 AD2d 869, 870).

The plaintiffs remaining contentions are without merit. Bracken, J. P., Rosenblatt, Lawrence, Krausman and Gold-stein, JJ., concur.