Dayanoff v. Dayanoff , 912 N.Y.S.2d 912 ( 2010 )

In an action for a divorce and ancillary relief, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Strauss, J.), dated December 2, 2009, which, after a nonjury trial, is in favor of the defendant and against him dismissing the complaint.

Ordered that the judgment is affirmed, with costs.

The plaintiff failed to make out a prima facie case for a divorce on the ground of constructive abandonment. His testimony at trial was inconsistent as to whether he and the defendant had continued to maintain sexual relations during a period of approximately three years while they were sleeping in separate bedrooms. Accordingly, the plaintiff failed to demonstrate that the defendant “refused to engage in sexual relations for a period of one or more years prior to the commencement of the action, and that such refusal was unjustified, willful, and continued, despite repeated requests from the plaintiff for the resumption of sexual relations” (Chellappan v Murugan, 62 AD3d 929, 930 [2009]; see Domestic Relations Law § 170 [2]; Gulati v Gulati, 50 AD3d 1095, 1097 [2008]; Schildkraut v Schildkraut, 223 AD2d 585, 585-586 [1996]; see also Silver v Silver, 253 AD2d 756, 757 [1998]). Skelos, J.P., Florio, Balkin and Leventhal, JJ., concur.