Opinion
2012-02-2
Galina Panova FEDOFF, Plaintiff–Respondent, v. Boris Winthrop FEDOFF, Defendant–Appellant.
Boris Winthrop Fedoff, New York, appellant pro se. DLA Piper LLP (US), New York (Nicholas F. Aldrich, Jr. of counsel), for respondent.
Boris Winthrop Fedoff, New York, appellant pro se. DLA Piper LLP (US), New York (Nicholas F. Aldrich, Jr. of counsel), for respondent.
Judgment, Supreme Court, New York County (Laura E. Drager, J.), entered June 7, 2010, to the extent appealed from as limited by the briefs, granting plaintiff a divorce on the ground of constructive abandonment, and awarding her exclusive use and occupancy of the parties' marital residence, unanimously affirmed, with costs.
Plaintiff was properly granted the divorce on the ground of constructive abandonment after defendant consented to the divorce on that ground at the inquest. Plaintiff sufficiently met her burden of proof by testifying that defendant continuously denied her sexual relations for over a year before the commencement of the action and that there was no physical reason why they could not have such relations ( see Haymes v. Haymes, 252 A.D.2d 439, 675 N.Y.S.2d 593 [1998]; Lyons v. Lyons, 187 A.D.2d 415, 416, 589 N.Y.S.2d 557 [1992] ). The complaint was properly amended, with leave of the court, to conform to the proof elicited at the inquest.
Defendant's arguments regarding equitable distribution of the parties' marital residence cannot be reviewed on appeal as they have already been reviewed and rejected by this Court ( see Fedoff v. Fedoff, 41 A.D.3d 114, 835 N.Y.S.2d 895 [2007], lv. dismissed 9 N.Y.3d 1027, 852 N.Y.S.2d 10, 881 N.E.2d 1197 [2008]; see also CPLR 5501[a][1] ).
We have considered defendant's remaining arguments, including that the court should have considered his alleged contributions to the marriage, and find them unavailing.