Tagliasacchi v. Tagliasacchi , 83 A.D.2d 963 ( 1981 )

In consolidated actions for divorce, the husband (plaintiff in Action No. 1 and defendant in Action No. 2) appeals from an order of the Supreme Court, Suffolk County (Geiler, J.), dated September 16, 1980, which, inter alia, denied the branch of his motion which sought to dismiss his wife’s cause of action for divorce on the ground of abandonment. Order modified, on the law, by adding thereto, after the word “denied”, the following: “except that the branch of the husband’s motion seeking dismissal of the wife’s cause of action for divorce on the ground of abandonment is granted.” As so modified, order affirmed, without costs or disbursements. The parties concede that on May 19,1978 they executed a separation agreement. Although the wife asserts that the agreement does not comply with section 5-311 of the General Obligations Law, it is undisputed that the agreement had been entered into voluntarily. Consequently the separation of the parties from that date forward was consensual and the cause of action alleging abandonment commencing on or about May 1, 1978 must be dismissed (see Domestic Relations Law, § 170, subd [2]; Butts v Butts, 50 AD2d 584). Mollen, P.J., Damiani, Gibbons and Thompson, JJ., concur.