De Angelis v. De Angelis 54 A.D.2d 1088

Judgment unanimously affirmed, with costs. Memorandum: Defendant appeals from a judgment granting divorce to plaintiff on the ground of cruel and inhuman treatment and fixing permanent alimony, and denying divorce to him on the ground of abandonment because of plaintiff’s refusal to have sexual relations with him. He also appeals from intermediate orders for temporary alimony; and he contends that the court erred in denying his request, made at the opening of the trial, *1089for an adjournment to amend his answer to allege an act of adultery by the plaintiff in 1972, at least three years earlier. We find no abuse of discretion in the trial court’s denial of an adjournment to amend the pleadings at that late date (see James-Smith v Rottenberg, 32 AD2d 792). Since the refusal of plaintiff to have sexual relations with defendant was based upon his misconduct toward her, it will not support his counterclaim for divorce against her (see Mirizio v Mirizio, 242 NY 74, 80), and in any event, since that refusal existed for much less than one year prior to the institution of this action, it will not support defendant’s counterclaim for divorce on the ground of abandonment (Domestic Relations Law, § 170, subd [2]; see Dudzick v Dudzick, 84 Misc 2d 731, 735; Cavallo v Cavallo, 79 Misc 2d 195, 197). The evidence of defendant’s cruel and inhuman treatment of plaintiff was sufficient to support the judgment for her; and the evidence of his assets and earning ability was sufficient to justify the orders for temporary alimony and the judgment for permanent alimony (see Kay v Kay, 37 NY2d 632, 637). The stipulation of counsel at argument renders moot the appeal from the order of October 27, 1975 appointing a receiver, and that appeal is dismissed. (Appeal from judgment of Ontario Supreme Court—divorce.) Present—Marsh, P. J., Motile, Simons, Goldman and Witmer, JJ.