Before this court is a grounds trial which was conducted on April 21, 2010. The verified complaint consist of one cause of action, Constructive Abandonment.

Plaintiff, J.S., and defendant, D.S., were married in a civil ceremony on November 21, 1989. This action was commenced onNovember 9, 2009. Plaintiff has been a resident of the State of New York for a continuous period of two years immediately prior to the commencement of this action. At the time of the marriage, both parties were over the age of 18. No judgments of divorce, separation or annulment have been granted to either party in this state or any other jurisdiction. There is one emancipated child of this marriage, whose date of birth is May 8, 1979, who resides in Atlanta, GA and no other children are expected. The marriage between the parties was not solemnized by a person specified in Domestic Relations Law §11(1). There is no other action or proceeding for a divorce or other dissolution of the said marriage of the parties pending in this or any other jurisdiction.

The verified complaint alleges that the parties have not sexually cohabited with each other as husband and wife for a period commencing on September 1, 1998 and continuing through the present time and during the said period of time the defendant has not so sexually cohabited or engaged in sexual relations with the plaintiff as husband and wife despite the plaintiff's willingness and despite his repeated requests to do so. That the defendant's refusal to so sexually cohabit with the plaintiff and engage in sexual relations with the plaintiff was not caused or provoked by any conduct on the part of the plaintiff and said conduct of the defendant [*2]was without the plaintiff's consent. Upon information and belief, the defendant has not suffered from any mental or physical disability that would prevent or inhibit the defendant from so sexually cohabiting and engaging in sexual relations with the plaintiff. By reason of the foregoing, the said conduct on the part of the defendant constitutes a constructive abandonment of the plaintiff.

Plaintiff testified that his current address is X, NY and that the defendant resides at the marital residence located at X, NY, that the parties resided at that residence for 13 years from 1988 until 2001. Plaintiff testified that all information in the verified complaint was true to the best of his knowledge and that the allegations were still true as of the date of this grounds trial. Plaintiff testified that he is presently married to defendant and that their date of marriage was on November 21, 1989 and the marriage was performed in Queens Court, he has one child with defendant, her date of birth is May 8, 1979 and she is 31 years of age and self supporting. Defendant still resides at X, NY.

Plaintiff testified that he and the defendant enjoyed a satisfactory sexual relationship from 1988 through 1998. Plaintiff also testified that they stopped having sexual relations on or about September 1, 1998 when the relationship deteriorated. Plaintiff testified that he would initiate sexual relations on occasion after taking defendant out to dinner, drinking or being out with friends. Plaintiff stated that defendant infrequently initiated sexual relations. Plaintiff testified that there was never a time that he refused defendant sexual relations. Plaintiff testified that defendant refused him sexual relations for no valid reason. Plaintiff testified that even after defendant refused to have sexual relations, that he tried to have conversations with defendant regarding same. Plaintiff and defendant belong to Jehovah Witness and plaintiff sought the advise of the Elders as to how to handle the deterioration of his marriage.

Plaintiff removed himself from the marital residence on or about June or July 2001. Plaintiff testified that the defendant's mental and physical health appeared normal and that there was no cause not to have sexual relations. Plaintiff testified that he made several attempts on various occasion to have sexual relations with defendant. He would take her to dinner, bring her flowers, take her out for drinks with friends, go away to the Pocono's with friends from their Jehovah Witness fellowship, but defendant still refused to have sexual relations with plaintiff.

Upon cross examination of the plaintiff, he first stated that he stopped having sexual relations with the defendant in 2000 then changed it to 1998, however, he left in June or July of 2001. Plaintiff was questioned as to his 2008 Federal Income Tax return wherein he has his current girlfriend listed as a dependent/sister. Defendant's counsel questioned plaintiff as to his health and defendant's health and stated that in his prior testimony, he stated that they were both in good health. Defendant's counsel did point out that defendant, does in fact, have hepatitis B which is a communicable disease and could be spread through sexual relations, to which plaintiff agreed. Plaintiff was questioned as to who X is and he stated that she is his girlfriend of the past 9 or 10 years and that he currently resides with her. When asked why plaintiff's 2008 Federal Tax Return lists Ms. X as an exemption and as the plaintiff's sister, plaintiff stated that it must be a mistake.

Defendant testified on direct examination that she was present during plaintiff's testimony and based upon her knowledge, the plaintiff's testimony was not true. Defendant testified that she never denied plaintiff sexual relations and that on several occasion when she initiated sexual [*3]relations, plaintiff refused. Defendant testified that they had an active sexual relationship up until when the plaintiff left the marital residence which was in June 2001. Defendant further testified that on one occasion, after sexual relations, plaintiff fell asleep and defendant looked at his cell phone which was unlocked and she called the phone number for X. Defendant and Ms. X had a long conversation and when plaintiff awoke, defendant presented plaintiff with his telephone. When plaintiff realized that the defendant and Ms. X had conversed, it was at that time that plaintiff left the marital residence.

Defendant acknowledged that the sexual relationship was infrequent, however, she stated that plaintiff was not that physical of a person and that she was okay with the infrequent sex as plaintiff's liver is not in good shape as a result of the hepatitis B. Defendant stated that she never refused to have sexual relations with defendant and that she was always willing to resume her sexual relationship with the defendant and does not want to pursue a divorce.

After plaintiff admitted to his relationship with Ms. X, defendant went to her doctor and was told that she had a vaginal infection. As plaintiff and defendant had a doctor in common, the doctor advised defendant that she should receive an injection because of her husband's hepatitis B. Defendant refused the injection due to plaintiff removing himself from the marital residence. Defendant states that she did not request plaintiff leave. Defendant stated that she has been lied to before and that her heart is not in this divorce. She forgives her husband and has always been willing to have and resume sexual relations with defendant.

Constructive Abandonment

"It is well settled that to establish a cause of action for a divorce on the ground of constructive abandonment, the spouse who claims to have been constructively abandoned must prove that the abandoning spouse unjustifiably refused to fulfill the basis obligations arising from the marriage contract and that the abandonment continued for at least one year" (Lyons v. Lyons, 187 AD2d 415, 416, 589 NYS2d 557 (2nd Dept. 1992); see also, George M. v. Mary Ann M., 171 AD2d 651, 651-652, 567 NYS2d 132 (2d Dept. 1991); Caprise v. Caprise, 143 AD2d 968, 970, 533 NYS2d 622 (2nd Dept. 1988). In order to rise to the level of constructive abandonment, the refusal must be "unjustified, willful, and continued, despite repeated requests from the other spouse for resumption of cohabitation'" (Caprise v. Caprise, supra , at 970, 533 NYS2d 622 quoting Scheinkman, Practice Commentaries, McKinney Cons. Laws of NY Book 14, Domestic Relations Law C170:7, at 608 [emphasis in original]). Where there is no proof that one spouse repeatedly requested a resumption of sexual relations, evidence that the other spouse refused a single request to engage in sexual relations is insufficient to sustain a cause of action for divorce on the grounds of constructive abandonment (see, Caprise v. Caprise, supra , Silver v. Silver, 253 AD2d 756, 677 NYS2d 593 (2nd Dept. 1998). Evidence that a party refused sexual relations for the required period and that the refusal was willful, continued, and unjustified would be sufficient (see Gulati v. Gulati, 50 AD3d 1095, 857 NYS2d 643 (2nd Dept. 2008); Ostriker v. Ostriker, 203, AD2d 343, 344-45, 609 N.U.S.2d 922, (2nd Dept. 1994); Gunn v. Gunn, 143 AD2d 393, 532 N.Y.s.2d 556 (2nd Dept. 1998); Benarroch v. Benarroch, 55 AD2d 943, 391 NYS2d 138 (2nd Dept. 1977).

The party seeking the divorce has the burden of demonstrating marital misconduct. See, Salomon v. Salomon, 102 Misc 2d 427, 423 NYS2d 605 (Sup. Ct. Suffolk Co. 1979) (generally); and Wolfson v. Wolfson, 39 AD2d 724, 331 NYS2d 844 (2nd Dept.).app. dism., 31 NYS2d 671, [*4]336 NYS2d 907, 288 NE2d 808 (1972) (with regard to abandonment). Entitlement to a divorce for construction abandonment must be based upon a showing in part, that the refusal to engage in marital relations is unjustified, willful and continuous. Diemer v. Diemer, 8 NY2d 206, 203 NYS2d 829, 168 NE2d 654 (1960). See, also, Chase v. Chase, 208 AD2d 883, 618 NYS2d 94 (2nd Dept. 1994); and Lyons v. Lyons, 187 AD2d 415, 416, 589 NYS2d 557 (2nd Dept. 1992).

To determine whether a witness is telling the truth is sometimes a difficult issue for the Court to decide. In the instant action, both the plaintiff and the defendant seemed credible. Their demeanor and testimony seemed truthful, but since they both testified to a different set of facts regarding the same events only one can be telling the truth.

In a similar case, (Sullivan v. Sullivan, 180 Misc 2d 433, 440, 689 NYS2d 378, 383 (Sup. Ct. Suffolk Co. 1999)), the Hon. Leonard B. Austin, eloquently described this type of testimony as follows: "Only two witnesses testified on the trial of this matter: the parties. On the one hand, plaintiff testified that he requested and was rebuffed. On the other, defendant testified to an active sexual relationship until ... [the defendant moved out.] On balance, these competing versions of the relationship of the parties, in and of itself, is a wash. Put another way, plaintiff has not established a fair preponderance of the credible evidence that there was a constructive abandonment here. Where there is an even balance of evidence, the Court is required to find for defendant. See, Rinaldi & Sons, Inc. v. Wells Fargo Alarm Service, Inc., 39 NY2d 191, 383 NYS2d 256, 347 NE2d 618 (1976)."

As a result of the foregoing and adopting the controlling case law cited above, this Court finds that the plaintiff simply has not met his burden of proof to establish grounds for a divorce pursuant to DRL §170(2).

The only two (2) witnesses that testified were the parties herein. The plaintiff testified he requested to have sexual relations with the defendant and was refused. The defendant testified she enjoyed having sexual relations with the plaintiff and did not refuse and was still willing to have sexual relations.

For the foregoing reasons, the action is dismissed.

This constitutes the decision and Order of the Court.

Dated: May 24, 2010

Mineola, New YorkE N T E R:

______________________________

Hon. Robert A. Bruno, J.S.C. C:\htformat\f5103300.txt