McGHEE v. McGHEE

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Supreme Court, Appellate Division, Second Department, New York.

Donna McGHEE, appellant, v. James McGHEE, respondent.

Decided: July 26, 1999

LAWRENCE J. BRACKEN, J.P., DAVID S. RITTER, MYRIAM J. ALTMAN and WILLIAM D. FRIEDMANN, JJ. Main Street Legal Services, Flushing, N.Y. (Maria Arias of counsel;  Jaimee Blocksom and Stacy Van Zile on the brief), for appellant. John A. Gemelli, Forest Hills, N.Y. (Jody A. Yanover of counsel), for respondent.

In an action for a divorce and ancillary relief, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Flug, J.), dated February 3, 1998, which, inter alia, granted the defendant a divorce on the ground of constructive abandonment.

ORDERED that the judgment is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Queens County, for further proceedings in accordance herewith.

 The Supreme Court improvidently exercised its discretion when, immediately after granting a motion by former counsel for the plaintiff wife to withdraw from the case, it took both parties by surprise by proceeding to an inquest on all matters arising in the divorce action without permitting a reasonable adjournment (cf., Matter of DeMarco v. Raftery, 242 A.D.2d 625, 662 N.Y.S.2d 138;  Matter of Millay v. Millay, 226 A.D.2d 728, 641 N.Y.S.2d 699;  Kalra v. Kalra, 170 A.D.2d 579, 566 N.Y.S.2d 356;  Stock v. Stock, 127 A.D.2d 829, 511 N.Y.S.2d 943;  Tesoriero v. Tesoriero, 114 A.D.2d 1027, 495 N.Y.S.2d 465;  Cuevas v. Cuevas, 110 A.D.2d 873, 488 N.Y.S.2d 725;  cf., CPLR 321[c] ).  Moreover, the court erred in granting the defendant husband a divorce on his counterclaim alleging constructive abandonment.   The defendant's testimony at the hearing was insufficient to establish that he had made repeated efforts to resume sexual relations with the plaintiff that were rebuffed (see, Schildkraut v. Schildkraut, 223 A.D.2d 585, 636 N.Y.S.2d 411;  Lyons v. Lyons, 187 A.D.2d 415, 589 N.Y.S.2d 557;  Caprise v. Caprise, 143 A.D.2d 968, 533 N.Y.S.2d 622).

MEMORANDUM BY THE COURT.

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