Vernon v. Vernon

Sep 27, 2004
Versions:10 A.D.3d 722
781 N.Y.S.2d 911
2004 N.Y. App. Div. LEXIS 11032

In an action for a divorce and ancillary relief, the defendant appeals from a judgment of the Supreme Court, Kings County (Fitzmaurice, J.), dated January 10, 2003, which, inter alia, upon consent, awarded the plaintiff a divorce on the ground of constructive abandonment.

Ordered that the appeal from so much of the judgment as, upon consent, awarded the plaintiff a divorce on the ground of constructive abandonment is dismissed; and it is further,

Ordered that the judgment is affirmed insofar as reviewed; and it is further,

*723Ordered that one bill of costs is awarded to the respondent.

The defendant contends that the Supreme Court erred in failing to provide him with an opportunity to proceed at the trial on his counterclaims for divorce. However, the defendant’s challenge to that portion of the judgment awarding the plaintiff a divorce must be dismissed since the defendant, through an April 5, 2001, preliminary conference order, in effect, withdrew his counterclaims for divorce and consented to the entry of judgment in favor of the plaintiff (see Tongue v Tongue, 61 NY2d 809 [1984]; Matter of Brouwer v Pacicca, 291 AD2d 448 [2002]; Matter of Larkin-King v King, 159 AD2d 626 [1990]).

The Supreme Court providently exercised its discretion in denying the defendant’s request to further adjourn the trial (see Barrafato v Franzitta, 308 AD2d 468 [2003]).

The defendant’s remaining contentions are without merit. Florio, J.P., Adams, Cozier and Lifson, JJ., concur.