Chan v. Chan

• Decision Date: 03 May 1993
• Citation: 597 N.Y.S.2d 422,193 A.D.2d 575
• Parties: Wai Foon CHAN, Appellant, v. Yuk Sim CHAN, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 422

597 N.Y.S.2d 422

193 A.D.2d 575

Wai Foon CHAN, Appellant, v.Yuk Sim CHAN, Respondent.

Supreme Court, Appellate Division Second Department.

May 3, 1993.

Jerald D. Kreppel, New York City, for appellant.

Harold A. Mandelbaum, New York City(Paul L. Klein, on the brief), for respondent.

Before THOMPSON, J.P., and BALLETTA, ROSENBLATT and EIBER, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the plaintiff husband appeals from an order of the Supreme Court, Kings County(Rigler, J.), dated January 9, 1991, which dismissed the complaint for failure to prove a prima facie case of constructive abandonment.

ORDERED that the order is reversed, on the law, with costs, the complaint is reinstated, and the matter is remitted to the Supreme Court, Kings County, for further proceedings.

We agree with the plaintiff husband that the court erred in dismissing his complaint for failure to prove a prima facie case of constructive abandonment.During his testimony at the trial, the plaintiff husband twice testified that his wife refused to engage in sexual relations for more than a year prior to the commencement of the action (see, Lyons v. Lyons, 187 A.D.2d 415, 589 N.Y.S.2d 557).

In determining a motion to dismiss an action for failure to make out a prima facie case, the plaintiff's evidence must be accepted as true and given the benefit of every reasonable inference which can reasonably be drawn from that evidence.The motion should only be granted if there is no rational process by which a fact-finder could...