Opinion
November 7, 1983
In an action for divorce, plaintiff husband appeals from an order of the Supreme Court, Queens County (Durante, J.), entered May 12, 1983, which, inter alia, granted defendant's motion to dismiss the complaint for failure to state a cause of action. Order affirmed, without costs or disbursements. Special Term correctly held that the prior matrimonial judgment which dismissed plaintiff's causes of action for divorce for failure of proof, but granted defendant custody, alimony, child support and exclusive occupancy of the marital residence, cannot serve as a predicate for a conversion divorce pursuant to subdivision (5) of section 170 Dom. Rel. of the Domestic Relations Law. "Nothing less than a judicial judgment of separation can be the basis for a divorce under the clear requirements of subdivision (5) of section 170 Dom. Rel. of the Domestic Relations Law" ( Wechter v Wechter, 50 A.D.2d 826, affd 40 N.Y.2d 964). Gibbons, J.P., O'Connor, Weinstein and Niehoff, JJ., concur.