Decided on February 2, 2012
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Mazzarelli, J.P., Friedman, Catterson, Renwick, Roman, JJ.
Judgment, Supreme Court, New York County (Laura E. Drager, J.), entered June 7, 2010, to the extent appealed from as limited by the briefs, granting plaintiff a divorce on the ground of constructive abandonment, and awarding her exclusive use and occupancy of the parties' marital residence, unanimously affirmed, with costs.
Plaintiff was properly granted the divorce on the ground of constructive abandonment after defendant consented to the divorce on that ground at the inquest. Plaintiff sufficiently met her burden of proof by testifying that defendant continuously denied her sexual relations for over a year before the commencement of the action and that there was no physical reason why they could not have such relations (see Haymes v Haymes, 252 AD2d 439 ; Lyons v Lyons, 187 AD2d 415, 416 ). The complaint was properly amended, with leave of the court, to conform to the proof elicited at the inquest.
Defendant's arguments regarding equitable distribution of the parties' marital residence cannot be reviewed on appeal as they have already been reviewed and rejected by this Court (see Fedoff v Fedoff, 41 AD3d 114 , lv dismissed 9 NY3d 1027 ; see also CPLR 5501[a]).
We have considered defendant's remaining arguments, including that the court should have considered his alleged contributions to the marriage, and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 2, 2012
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