Eli Dayanoff, appellant, v. Zoya Dayanoff, respondent.

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

Eli Dayanoff, appellant, v. Zoya Dayanoff, respondent.

2010-01329 (Index No. 24354/08)

Decided: December 28, 2010

PETER B. SKELOS, J.P. ANITA R. FLORIO RUTH C. BALKIN JOHN M. LEVENTHAL, JJ. Shmuel Agami, New York, N.Y., for appellant. Jeffrey Levitt, Massapequa, N.Y., for respondent.

Submitted-December 9, 2010

DECISION & ORDER

In an action for a divorce and ancillary relief, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Strauss, J.), dated December 2, 2009, which, after a nonjury trial, is in favor of the defendant and against him dismissing the complaint.

ORDERED that the judgment is affirmed, with costs.

The plaintiff failed to make out a prima facie case for a divorce on the ground of constructive abandonment.   His testimony at trial was inconsistent as to whether he and the defendant had continued to maintain sexual relations during a period of approximately three years while they were sleeping in separate bedrooms.   Accordingly, the plaintiff failed to demonstrate that the defendant “refused to engage in sexual relations for a period of one or more years prior to the commencement of the action, and that such refusal was unjustified, willful, and continued, despite repeated requests from the plaintiff for the resumption of sexual relations” (Chellappan v. Murugan, 62 AD3d 929, 930;  see Domestic Relations Law § 170[2];  Gulati v. Gulati, 50 AD3d 1095, 1097;  Schildkraut v. Schildkraut, 223 A.D.2d 585, 585-586;  see also Silver v. Silver, 253 A.D.2d 756, 757).

SKELOS, J.P., FLORIO, BALKIN and LEVENTHAL, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court

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