Opinion
October 16, 1975
Judgment, Supreme Court, New York County, entered on January 14, 1975, granting plaintiff a divorce, dismissing defendant's counterclaim for like relief, and awarding plaintiff alimony and a counsel fee, unanimously modified, on the law and on the facts, to the extent of reversing those portions thereof which awarded plaintiff a divorce and alimony and granting a divorce to defendant on his counterclaim, and, as so modified, the judgment is affirmed, without costs and without disbursements. Plaintiff failed to establish cruel and inhuman treatment, the sole ground upon which she sought a divorce and the record does not contain any factual evidence of "verbal and physical abuse" as alluded to in the decision of the trial court. On the other hand defendant proved, among other things, that plaintiff locked him out of their marital apartment on November 19, 1971, changed the lock to the apartment and refused to cohabit with him, thereby entitling him to a divorce as sought in his counterclaim. (Schine v Schine, 31 N.Y.2d 113). In view of her misconduct plaintiff may not recover alimony (Domestic Relations Law, § 236; Math v Math, 39 A.D.2d 583, affd 31 N.Y.2d 693).
Concur — Stevens, P.J., Murphy, Lupiano, Capozzoli and Nunez, JJ.