Opinion
August 21, 1995
Appeal from the Supreme Court, Queens County (Modugno, J.H.O.).
Ordered that the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision (see, Schicchi v. Green Constr. Corp., 100 A.D.2d 509); and it is further,
Ordered that the judgment is reversed, on the law and the facts, without costs or disbursements, and the complaint is dismissed.
The plaintiff husband sought a judgment of divorce on the ground that on February 14, 1991, and thereafter, the defendant wife constructively abandoned him in that she persistently, willfully, and unjustifiably refused to engage in marital relations. However, on cross-examination, the husband admitted that from November 26, 1990, to June 24, 1991, he resided with his mother. The defendant could not therefore have abandoned the plaintiff, since the plaintiff had already abandoned her (see, Waldman v. Waldman, 71 A.D.2d 951; Henderson v. Henderson, 63 A.D.2d 853; Belandres v. Belandres, 58 A.D.2d 63, 64-65; see also, Johnson v. Johnson, 167 A.D.2d 954). In any event, even if we assume, arguendo, that the wife refused to have sexual relations
after February 14, 1991, the husband admits that he moved out of the conjugal abode permanently in December 1991, with the result that the alleged "constructive abandonment" by the wife lasted for less than the minimum of one year contemplated by the statute (see, Domestic Relations Law § 170; see also, Caprise v. Caprise, 143 A.D.2d 968).
Finally, the evidence presented at the hearing failed to make out a cause of action against the wife for cruel and inhuman treatment (see, e.g., Lind v. Lind, 89 A.D.2d 518, affd 58 N.Y.2d 965). Copertino, J.P., Santucci, Altman and Friedmann, JJ., concur.