Opinion
May 20, 1985
Appeal from the Supreme Court, Queens County (Lonschein, J.).
Judgment affirmed, with costs.
There is ample evidence in the record to support the jury's verdict. A judgment of divorce will not be granted in this State where the plaintiff merely shows irreconcilable differences and incompatibility between the parties ( Warguleski v. Warguleski, 79 A.D.2d 1107; Jorgensen v. Jorgensen, 67 A.D.2d 902; Denny v Denny, 65 A.D.2d 658, affd 48 N.Y.2d 915). Furthermore, the court's instructions to the jury with respect to the elements of cruel and inhuman treatment and abandonment were proper. Where the divorce action is based upon such grounds, there is no public policy requiring the dissolution of a marriage merely because it is "dead" ( Hessen v. Hessen, 33 N.Y.2d 406; Kennedy v. Kennedy, 91 A.D.2d 1200). Plaintiff's reliance upon Gleason v. Gleason ( 26 N.Y.2d 28) is misplaced. There plaintiff sought a conversion divorce, which is one instance where the Legislature clearly intended that a marriage could be terminated without proof of fault. Titone, J.P., Thompson, Bracken and Rubin, JJ., concur.