Fedoff v. Fedoff

92 A.D.3d 435, 937 N.Y.2d 593

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 2, 2012
• Status: Published

Opinion

Plaintiff was properly granted the divorce on the ground of constructive abandonment after defendant consented to the divorce on that ground at the inquest. Plaintiff sufficiently met her burden of proof by testifying that defendant continuously denied her sexual relations for over a year before the commencement of the action and that there was no physical reason why they could not have such relations (see Haymes v Haymes, 252 AD2d 439 [1998]; Lyons v Lyons, 187 AD2d 415, 416 [1992]). The complaint was properly amended, with leave of the court, to conform to the proof elicited at the inquest.

Defendant’s arguments regarding equitable distribution of the parties’ marital residence cannot be reviewed on appeal as they have already been reviewed and rejected by this Court (see Fedoff v Fedoff, 41 AD3d 114 [2007], lv dismissed 9 NY3d 1027 [2008]; see also CPLR 5501 [a] [1]).

We have considered defendant’s remaining arguments, including that the court should have considered his alleged contributions to the marriage, and find them unavailing. Concur — Mazzarelli, J.R, Friedman, Catterson, Renwick and Román, JJ.