Passante v. Passante

Appeal from an order of the Supreme Court (Williams, J.), entered October 8, 1993 in Sullivan County, which, inter alia, partially denied defendant’s motion to dismiss the complaint.

Defendant claims that plaintiff’s complaint in this divorce *771action should have been dismissed in its entirety. We disagree. The first cause of action, which alleges constructive abandonment based upon defendant’s unjustifiable refusal to cohabit and engage in marital relations with plaintiff for more than one year, is sufficient to survive a motion to dismiss (see, Diemer v Diemer, 8 NY2d 206, 210; Horvath v…