Donohue v. Donohue , 636 N.Y.S.2d 104 ( 1995 )

—In an action for a divorce and ancillary relief, the plaintiff appeals from an order of the Supreme Court, Nassau County (O’Brien, J.), dated September 20, 1993, which, after a nonjury trial, denied his application for a divorce on the ground of constructive abandonment pursuant to Domestic Relations Law § 170 (2) and dismissed the complaint.

Ordered that the order is reversed, on the law and the facts, with costs, and the matter is remitted to the Supreme Court, Nassau County, for entry of a judgment of divorce in accordance herewith.

The plaintiff and the defendant both admitted at trial that they had not had sexual relations for several years. The plaintiff testified that he had not acquiesced to a lifestyle of sexual abstention, that he had made multiple good-faith requests that the defendant resume the marital relationship, but that the defendant had consistently and without justification or his consent refused to have sexual relations with him. Accordingly, as the plaintiff carried his burden of demonstrating that he was constructively abandoned by his wife (see, Domestic Relations Law § 170 [2]; Schine v Schine, 31 NY2d 113, rearg denied 31 NY2d 805; Gunn v Gunn, 143 AD2d 393; cf., Nicholson v Nicholson, 87 AD2d 645), his application for a divorce should have been granted. Ritter, J. P., Altman, Friedmann and Florio, JJ., concur.