33 A.D.3d 892, 823 N.Y.S.2d 209, 2006 N.Y. Slip Op. 07715
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**1 Alexander T. Molloy, Appellant
v
Mary C. Molloy, Respondent.
Supreme Court, Appellate Division,
October 24, 2006
CITE TITLE AS: Molloy v Molloy
HEADNOTE
Husband and Wife
Divorce
Abandonment
In an action for divorce and ancillary relief, the plaintiff
appeals from a judgment of the Supreme Court,
Ordered that the judgment is affirmed, with costs.
The Supreme Court correctly determined that the plaintiff made a prima facie showing of entitlement to judgment as a matter of law by submitting sufficient evidence to establish the elements of abandonment and the absence of any issues of fact (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]; Caprise v Caprise, 143 AD2d 968, 969-970 [1988]). In opposition, the defendant raised a triable issue of fact with respect to whether the plaintiff's offer to resume cohabitation was made in good faith (see Zuckerman v City of New York, 49 NY2d 557, 563 [1980]; Solomon v Solomon, 290 NY 337, 340-341 [1943]; Bohmert v Bohmert, 241 NY 446, 452-453 [1926]), thereby necessitating a trial. The defendant's contention that the plaintiff's offer to resume cohabitation was not made in good faith was not an affirmative defense that had been precluded by any previous order of the Supreme Court.
After trial, the Supreme Court properly dismissed the *893
plaintiff's complaint, as he **2 failed to establish the alleged abandonment
(see
The parties' remaining contentions either are without merit or have been rendered academic. Miller, J.P., Ritter, Spolzino and Dillon, JJ., concur.
Copr. (c) 2008, Secretary of
State, State of
NY,2006.