McGhee v. McGhee

Appellate Division of the Supreme Court of New York

McGhee v. McGhee

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

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 26, 1999

StatusPublished

Cited by5 cases

This text of 263 A.D.2d 530 (McGhee v. McGhee) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McGhee v. McGhee, 263 A.D.2d 530, 693 N.Y.S.2d 210, 1999 N.Y. App. Div. LEXIS 8372 (N.Y. Ct. App. 1999).

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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.

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—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.

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Bluebook (online)

263 A.D.2d 530, 693 N.Y.S.2d 210, 1999 N.Y. App. Div. LEXIS 8372, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcghee-v-mcghee-nyappdiv-1999.

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