James v. James

13 A.D.3d 583, 786 N.Y.S.2d 336, 2004 N.Y. App. Div. LEXIS 15723

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 27, 2004
• Status: Published

Opinions

In an action for a divorce and ancillary relief, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Deutsch, J.H.O.), dated February 27, 2003, which, after a nonjury trial, dismissed the complaint on the ground that she failed to prove her cause of action for a divorce on the ground of abandonment.

Ordered that the judgment is reversed, on the law and the facts, with costs, the complaint is reinstated, and the matter is remitted to the Supreme Court, Kings County, for the entry of an interlocutory judgment of divorce and for further proceedings on the complaint.

The plaintiff established a prima facie case on her cause of action for a divorce on the ground of abandonment, and the defendant failed to raise the defense of justification. Accordingly, the plaintiff should have been granted a divorce on the ground of abandonment (see Domestic Relations Law § 170 [2]; Diemer v Diemer, 8 NY2d 206 [I960]; Pascarella v Pascarella, 210 AD2d 915, 916 [1994]; Maryon v Maryon, 60 AD2d 623 [1977]; Del Galdo v Del Galdo, 51 AD2d 741 [1976]). We reach no other issues at this time. Ritter, J.P., H. Miller and Crane, JJ., concur.