Opinion
November 16, 1990
Appeal from the Supreme Court, Cayuga County, Corning, J.
Present — Doerr, J.P., Boomer, Pine, Lawton and Davis, JJ.
Order unanimously affirmed without costs. Memorandum: Supreme Court correctly found that plaintiff, who was imprisoned from August 1963 until December 1966 and from 1979 to the present, failed to prove his cause of action for a default divorce based on abandonment. One of the elements of such a cause of action is an unjustified separation (see, Bazant v. Bazant, 80 A.D.2d 310; cf., Maryon v. Maryon, 60 A.D.2d 623; Del Galdo v. Del Galdo, 51 A.D.2d 741), and plaintiff cannot prove that defendant's absence was unjustified because defendant has grounds for divorce against plaintiff (see, Domestic Relations Law § 170; 1 Foster, Freed and Brandes, Law and the Family New York § 6:20 [2d ed]).