Opinion
2003-04609.
Decided June 28, 2004.
In an action for a divorce and ancillary relief, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Blydenburgh, J.), dated March 6, 2003, which, in effect, granted the defendant's oral application, made at the close of the plaintiff's case pursuant to CPLR 4401, for judgment as a matter of law dismissing the complaint.
Joseph A. Solow, Hauppauge, N.Y., for appellant.
Raymond M. Smolenski, P.C., Smithtown, N.Y., for respondent.
Before: A. GAIL PRUDENTI, P.J., DAVID S. RITTER, BARRY A. COZIER, PETER B. SKELOS, JJ.
DECISION ORDER
ORDERED that on the court's own motion, the notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted ( see CPLR 5701[c]); and it is further,
ORDERED that the order is reversed, on the law, with costs, the application is denied, and the complaint is reinstated.
The plaintiff commenced this action seeking, inter alia, a divorce on the ground of abandonment ( see Domestic Relations Law § 170). At the close of the plaintiff's case, the Supreme Court granted the defendant's oral application pursuant to CPLR 4401, for judgment as a matter of law dismissing the complaint. We reverse.
"A trial court's grant of a CPLR 4401 motion for judgment as a matter of law is appropriate where the trial court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party" ( Szczerbiak v. Pilat, 90 N.Y.2d 553; see Hernandez v. Two E. End Ave. Apart. Corp., 303 A.D.2d 556). The court is not to engage in weighing the evidence, and the motion should not be granted where different inferences may be drawn from the facts ( see O'Brien v. Covert, 187 A.D.2d 419). Here, viewing the evidence in a light most favorable to the plaintiff, there was a rational process by which the factfinder could have found that the defendant voluntarily abandoned the marital home without provocation or justification, and remained away for more than one year without intent or a bona fide offer to return, against the will and without the consent of the plaintiff ( see Diemer v. Diemer, 8 N.Y.2d 206; Aghnides v. Aghnides, 308 N.Y. 530; Heilbut v. Heilbut, 297 A.D.2d 233; Casale v. Casale, 111 A.D.2d 737). Thus, the Supreme Court should not have granted the defendant's oral application, made at the close of the plaintiff's case pursuant to CPLR 4401, for judgment as a matter of law dismissing the complaint ( see Davey v. Davey, 293 A.D.2d 444).
PRUDENTI, P.J., RITTER, COZIER and SKELOS, JJ., concur.