## Facts

- Wife sued husband for divorce and ancillary relief after a 41-year marriage while the parties continued living at the same address.
- The complaint alleged two divorce grounds under New York Domestic Relations Law (DRL) § 170: (1) cruel and inhuman treatment and (2) constructive abandonment.
- The constructive-abandonment claim was pleaded as “social abandonment,” alleging the husband refused social interaction, including:
  - not celebrating or acknowledging holidays and the wife’s birthday,
  - not eating meals together,
  - not attending family functions or accompanying the wife to ordinary activities (movies, shopping, restaurants, church),
  - leaving her at a hospital emergency room,
  - removing her belongings from the marital bedroom, and
  - generally ignoring her.
- The complaint did not allege the type of conduct commonly pleaded for constructive abandonment, such as an unjustified and continuous refusal of sexual relations despite repeated demands.
- Husband moved pre-answer to dismiss the constructive-abandonment claim for failure to state a cause of action under CPLR 3211(a)(7), or alternatively for summary judgment under CPLR 3212.
- The trial court dismissed the constructive-abandonment claim under CPLR 3211(a)(7); the wife appealed.

## Issues

1. Whether “social abandonment” can qualify as “abandonment” or “constructive abandonment” under DRL § 170(2).
2. Whether the wife’s allegations, taken as true, stated a legally cognizable constructive-abandonment claim sufficient to survive dismissal under CPLR 3211(a)(7).

## Decision

- The Appellate Division affirmed the dismissal of the constructive-abandonment cause of action.
- “Social abandonment,” as alleged, does not constitute abandonment/constructive abandonment under DRL § 170(2).
- Because the pleaded facts did not fit within DRL § 170(2), dismissal at the pleading stage was proper, and the court did not reach the alternative summary judgment request.
- The separate claim for cruel and inhuman treatment was not disturbed and remained pending.

## Legal Principles

- A CPLR 3211(a)(7) motion tests legal sufficiency; even accepting pleaded facts as true, dismissal is required if the allegations do not state a cognizable claim.
- “Abandonment” and “constructive abandonment” under DRL § 170(2) are terms with a settled meaning in New York divorce law.
- Constructive abandonment traditionally requires an unjustified, continuous refusal of sexual relations (or comparable marital cohabitation obligations) for the statutory period, despite the other spouse’s demands.
- Social withdrawal, emotional neglect, and refusal to participate in family or social life—without allegations amounting to sexual abandonment—do not satisfy DRL § 170(2) and may instead be relevant, if at all, to other divorce grounds.

## Conclusion

The court held that alleged “social abandonment” is not a legally recognized form of abandonment under DRL § 170(2), so the wife’s constructive-abandonment claim failed as a matter of law and was properly dismissed under CPLR 3211(a)(7).


Davis v. Davis, 71 A.D.3d 13 (N.Y. App. Div. 2d Dep’t 2009)