Clarke v. Clarke

139 A.D.3d 633, 30 N.Y.S.3d 862

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 31, 2016
• Docket: 1318 307005/10
• Status: Published

Opinion

Order, Supreme Court, New York County (Ellen Gesmer, J.), entered on or about November 17, 2014, which, to the extent appealed from as limited by the briefs, confirmed a special referee’s recommendation that defendant husband not be granted a judgment of divorce in his favor on the grounds of abandonment, unanimously affirmed, without costs.

Supreme Court properly declined to grant a judgment of divorce in favor of defendant on his counterclaim for abandonment, since he failed to establish that plaintiff’s departure from the marital home was unjustified (see Del Galdo v Del Galdo, 51 AD2d 741, 741 [2d Dept 1976]; see also Heilbut v Heilbut, 297 AD2d 233, 233-234 [1st Dept 2002], lv dismissed in part and denied in part 99 NY2d 643 [2003]). Both plaintiff and the parties’ adult daughter testified regarding defendant’s physical and mental abuse of plaintiff during the course of the parties’ marriage.

We have considered defendant’s remaining contentions and find them unavailing.

Concur — Friedman, J.R, Renwick, Moskowitz, Richter and Kapnick, JJ.