Opinion
April 26, 1982
In a matrimonial action (Action No. 2), the plaintiff husband appeals from so much of a judgment of the Supreme Court, Westchester County (Wood, J.), entered May 13, 1981, as dismissed his complaint for failure to establish his causes of action for divorce by a fair preponderance of the credible evidence. Judgment affirmed, insofar as appealed from, without costs or disbursements. The departure of Mrs. Dornbusch from the marital bedroom and her abstention from sexual relations were based on a reasonable claim of mistreatment by her husband. Consequently, her actions did not constitute an abandonment (see Phillips v Phillips, 70 A.D.2d 30; Fischel v. Fischel, 286 App. Div. 842). Furthermore, once the separation action was commenced by the wife (Action No. 1), she was under no obligation to follow her husband to France (see Mirizio v. Mirizio, 248 N.Y. 175, 180-181; see, also, Phillips v. Phillips, supra). The husband's other contentions are also without merit. Damiani, J.P., Lazer, Mangano and Gulotta, JJ., concur.