Skala v. Skala

— In an action for divorce, the plaintiff wife appeals from a judgment of the Supreme Court, Queens County (Lonschein, J.), entered April 19,1985, which, upon a jury verdict in favor of the defendant husband, dismissed her complaint. Plaintiff’s notice of appeal from a clerk’s extract of the minutes of trial, filed July 5, 1983, is deemed a premature notice of appeal from the judgment entered April 19, 1985 (see, CPLR 5520 [c]). Judgment affirmed, with costs. There is ample evidence in the record to support the jury’s verdict. A judgment of divorce will not be granted in this State where the plaintiff merely shows irreconcilable differences and incompatibility between the parties (Warguleski v Warguleski, 79 AD2d 1107; Jorgensen v Jorgensen, 67 AD2d 902; Denny v Denny, 65 AD2d 658, affd 48 NY2d 915). Furthermore, the court’s instructions to the jury with respect to the elements of cruel and inhuman treatment and abandonment were proper. Where the divorce action is based upon such grounds, there is no public policy requiring the dissolution of a marriage merely because it is “dead” (Hessen v Hessen, 33 NY2d 406; Kennedy v Kennedy, 91 AD2d 1200). Plaintiff’s reliance upon Gleason v Gleason (26 NY2d 28) is misplaced. There plaintiff sought a conversion divorce, which is one instance where the Legislature clearly intended that a marriage could be terminated without proof of fault. Titone, J. P., Thompson, Bracken and Rubin, JJ., concur.