Opinion
December 29, 1995
Appeal from the Supreme Court, Nassau County (O'Brien, J.).
Ordered that the order is reversed, on the law and the facts, with costs, and the matter is remitted to the Supreme Court, Nassau County, for entry of a judgment of divorce in accordance herewith.
The plaintiff and the defendant both admitted at trial that they had not had sexual relations for several years. The plaintiff testified that he had not acquiesced to a lifestyle of sexual abstention, that he had made multiple good-faith requests that the defendant resume the marital relationship, but that the defendant had consistently and without justification or his consent refused to have sexual relations with him. Accordingly, as the plaintiff carried his burden of demonstrating that he was constructively abandoned by his wife ( see, Domestic Relations Law § 170; Schine v Schine, 31 N.Y.2d 113, rearg denied 31 N.Y.2d 805; Gunn v Gunn, 143 A.D.2d 393; cf., Nicholson v Nicholson, 87 A.D.2d 645), his application for a divorce should have been granted. Ritter, J.P., Altman, Friedmann and Florio, JJ., concur.