Opinion
Argued April 20, 1988
Decided May 26, 1988
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Harold L. Wood, J.
Vincent G., appellant pro se. Lynn J. Maier for respondent.
MEMORANDUM.
The order of the Appellate Division should be reversed, with costs, and the case remitted to the Appellate Division for determination of the factual issues, if any, raised on the appeal to that court.
Plaintiff sought a divorce, on the ground of constructive abandonment. At trial, she testified that she and her husband had not engaged in sexual relations for more than one year prior to the commencement of the action, and that he refused to discuss the issue or attend counseling. Defendant, on the other hand, testified that plaintiff said she hated him, and was not interested in sexual relations with him. The jury found in favor of defendant, in effect determining that plaintiff was not entitled to a divorce based on constructive abandonment because she consented to a sex-limited relationship (see, Domestic Relations Law § 170; Hammer v Hammer, 34 N.Y.2d 545, 546; Schine v Schine, 31 N.Y.2d 113, 119, rearg denied 31 N.Y.2d 805). The trial court subsequently granted plaintiff's motion for judgment as a matter of law (CPLR 4404 [a]), and awarded her a divorce on the ground of constructive abandonment. A divided Appellate Division affirmed.
Judgment as a matter of law may be granted to a party after a contrary jury verdict only if "there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [jurors] to the conclusion reached by the jury on the basis of the evidence presented at trial" (Cohen v Hallmark Cards, 45 N.Y.2d 493, 499). In this case, defendant's testimony provided a rational basis for the jury's verdict. Hence, plaintiff was not entitled, as a matter of law, to a divorce on the ground of constructive abandonment. However, because plaintiff also sought a new trial on the ground that the verdict was against the weight of the evidence, we deem it appropriate to remit this case to the Appellate Division for determination of the factual issues, if any, raised on the appeal to that court.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.
Order reversed, with costs, and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the memorandum herein.