Pititto v. Pititto

In an action for divorce on the ground of abandonment, the plaintiff husband appeals from a judgment of the Supreme Court, Suffolk County, dated January 6, 1978, which, in effect, dismissed the complaint, after a nonjury trial. Judgment reversed, on the law, without costs or disbursements, and action remanded to Special Term for a new trial in accordance herewith. At the time of the service of the summons and complaint, defendant-respondent was residing in a nursing home. A new trial is required to determine under what circumstances she came to be in the home and whether she is capable (both physically and mentally) of leaving of her own free will. Titone, J. P., Suozzi, Margett and O’Connor, JJ., concur.