Nicholson v. Nicholson

87 A.D.2d 645, 449 N.Y.S.2d 4, 1982 N.Y. App. Div. LEXIS 15974

Opinion

In a matrimonial action, the plaintiff husband appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Queens County (Linakis, J.), dated May 21,1981, as dismissed his complaint, which sought a divorce on the ground of constructive abandonment. Judgment affirmed insofar as appealed from, with costs. Special Term properly dismissed the complaint. Plaintiff failed to demonstrate at the trial that he did not consent to the failure of himself and his wife to engage in sexual relations for a period of more than seven years. His own testimony revealed that following the incident of July 4, 1973, during which the defendant refused to have sexual relations with him, he never asked her to have sexual relations with him again. Accordingly, the plaintiff has failed to support his claim that the defendant constructively abandoned him (see Hammer v Hammer, 41 AD2d 831, affd 34 NY2d 545; Solomon v Solomon, 290 NY 337; see, also, De Angelis v De Angelis, 54 AD2d 1088; Levy v Levy, 53 AD2d 833; Rossiter v Rossiter, 92 Mise 2d 342). Weinstein, J. P., O’Connor, Bracken and Rubin, JJ., concur.