Opinion
March 13, 1998
Appeal from Order of Supreme Court, Herkimer County, Parker, J. — Divorce.
Present — Denman, P. J., Lawton, Wisner, Balio and Fallon, JJ.
Order unanimously affirmed without costs. Memorandum: We affirm for the reasons stated in the decision at Supreme Court. In addition, we decline to grant the request of plaintiff on appeal to amend the complaint to conform to the proof at trial and to grant him a divorce on the ground of constructive abandonment (see, Diemer v. Diemer, 8 N.Y.2d 206, 211-212). The fact that the parties did not have sexual relations for more than one year does not by itself establish constructive abandonment (see, Hammer v. Hammer, 34 N.Y.2d 545, 546). Plaintiff failed to meet his burden of establishing that defendant refused to engage in sexual relations and that such refusal was "`unjustified, willful, and continued, despite repeated requests * * * for resumption of cohabitation'" (Caprise v. Caprise, 143 A.D.2d 968, 970, quoting Scheinkman, Practice Commentaries, McKinney's Cons Laws of NY, Book 14, Domestic Relations Law C170:7, at 608; see also, Tissot v. Tissot, 243 A.D.2d 462; Lyons v. Lyons, 187 A.D.2d 415).