Wai Foon Chan v. Yuk Sim Chan

193 A.D.2d 575, 597 N.Y.S.2d 422, 1993 N.Y. App. Div. LEXIS 4530

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 3, 1993
• Status: Published

Opinion

In an action for a divorce and ancillary relief, the plaintiff husband appeals from an order of the Supreme Court, Kings County (Rigler, J.), dated January 9, 1991, which dismissed the complaint for failure to prove a prima facie case of constructive abandonment.

Ordered that the order is reversed, on the law, with costs, the complaint is reinstated, and the matter is remitted to the Supreme Court, Kings County, for further proceedings.

We agree with the plaintiff husband that the court erred in dismissing his complaint for failure to prove a prima facie case of constructive abandonment. During his testimony at the trial, the plaintiff husband twice testified that his wife refused to engage in sexual relations for more than a year prior to the commencement of the action (see, Lyons v Lyons, 187 AD2d 415).

In determining a motion to dismiss an action for failure to make out a prima facie case, the plaintiff’s evidence must be accepted as true and given the benefit of every reasonable inference which can reasonably be drawn from that evidence. The motion should only be granted if there is no rational process by which a fact-finder could find for the plaintiff as against the moving defendant (see, Bodeanu v Bertorelli, 170 AD2d 424; Secof v Greens Condominium, 158 AD2d 591, 593).

The plaintiff’s evidence, when viewed in the light most favorable to him, sufficiently established not only that his wife refused sexual relations for the required period, but that the refusal was willful, continued and unjustified (see, George M. v Mary Ann M., 171 AD2d 651). Thompson, J. P., Balletta, Rosenblatt and Eiber, JJ., concur.