McGhee v. McGhee

263 A.D.2d 530, 693 N.Y.S.2d 210, 1999 N.Y. App. Div. LEXIS 8372

Opinion

—In an action for a divorce and ancillary relief, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Flug, J.), dated February 3, 1998, which, inter alia, granted the defendant a divorce on the ground of constructive abandonment.

Ordered that the judgment is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Queens County, for further proceedings in accordance herewith.

The Supreme Court improvidently exercised its discretion when, immediately after granting a motion by former counsel for the plaintiff wife to withdraw from the case, it took both parties by surprise by proceeding to an inquest on all matters arising in the divorce action without permitting a reasonable adjournment (cf., Matter of DeMarco v Raftery, 242 AD2d 625; Matter of Millay v Millay, 226 AD2d 728; Kalra v Kalra, 170 AD2d 579; Stock v Stock, 127 AD2d 829; Tesoriero v Tesoriero, 114 AD2d 1027; Cuevas v Cuevas, 110 AD2d 873; cf., CPLR 321 [c]). Moreover, the court erred in granting the defendant husband a divorce on his counterclaim alleging constructive abandonment. The defendant’s testimony at the hearing was insufficient to establish that he had made repeated efforts to resume sexual relations with the plaintiff that were rebuffed (see, Schildkraut v Schildkraut, 223 AD2d 585; Lyons v Lyons, 187 AD2d 415; Caprise v Caprise, 143 AD2d 968). Bracken, J. P., Ritter, Altman and Friedmann, JJ., concur.