Frances G. v. Vincent G.

— In an action for a divorce and ancillary relief, the defendant husband appeals from a judgment of the Supreme Court, Westchester County (Wood, J.), dated June 27, 1986, which, inter alla, awarded the plaintiff wife a divorce on the ground of constructive abandonment. By decision and order of this court dated August 31, 1987, the judgment was affirmed, the majority finding that the trial court properly had set aside the jury verdict in favor of the defendant and awarded judgment in favor of the plaintiff wife as a matter of law (Frances G. v Vincent G., 133 AD2d 254). By order dated May 26, 1988, the Court of Appeals reversed the order of this court on the ground that the defendant’s trial testimony that the termination of sexual relations between the parties was by mutual consent or acquiescence provided a rational basis for the jury’s verdict (Frances G. v Vincent G., 71 NY2d 1001). The Court of Appeals concluded that the plaintiff was not entitled to a judgment on her cause of action for a divorce on the ground of [600] constructive abandonment, as a matter of law, and remitted the matter to this court for consideration of factual issues raised by the branch of the plaintiff’s posttrial motion which was to set aside the jury’s verdict on her cause of action for a divorce on the ground of abandonment as against the weight of the evidence. Ordered that the judgment is reversed, on the facts, with costs, the branch of the plaintiff’s posttrial motion which was to set aside the jury’s verdict on her cause of action for a divorce on the ground of abandonment is denied, the jury verdict on that cause of action is reinstated, that cause of action is dismissed, and the matter is remitted to the Supreme Court, Westchester County, for consideration of the ancillary demands for relief and the making of an award therefor in its discretion; the provisions of the judgment regarding child custody, visitation, exclusive possession of the marital residence, support, maintenance and insurance shall stand as interim awards pending the determination of the Supreme Court, Westchester County, upon remittal. Reviewing the facts of the instant case, we find that there was sufficient evidence of consent and/or acquiescence on the part of the plaintiff to support the jury verdict against her on the cause of action grounded on constructive abandonment. It is the proper function of the jury to assess the credibility of witnesses, to resolve conflicting testimony and to determine all factual questions (see, Felt v Olson, 51 NY2d 977; Lopez v City of New York, 121 AD2d 369, 370; Hill v Bresnick, 112 AD2d 919). Whether to set aside a jury verdict as against the weight of the evidence is essentially a factual determination, and the standard to be applied is whether the jury could have reached its decision on any "fair interpretation of the evidence” (see, De Luca v Kameros, 130 AD2d 705; Quadrozzi v Norcem, Inc., 125 AD2d 559; Nicastro v Park, 113 AD2d 129). In our view, the interpretation of the evidence evincing consent on the part of the plaintiff wife was properly for the consideration of the jury (see, Nicastro v Park, supra, at 133). "Where varying inferences may be drawn from the evidence adduced, the jury must resolve them” (O’Neil v Port Auth., 111 AD2d 375, 376). Reviewing the evidence on the issue of consent and/or acquiescence on the part of the plaintiff, we conclude that the uncontradicted testimony of the defendant that the plaintiff wife was hostile to him since December 1980 and that she stated in 1983 that she had had no desire to have sexual [601] relations with him for the previous three years was sufficient to support the verdict in favor of the defendant. Although our dissenting colleagues characterize the plaintiffs statement as merely "an expression of the plaintiffs extreme displeasure with the defendant at the time of its utterance” (at —), the plaintiff did not express herself in that manner at the trial. Indeed, the plaintiff testified that it was "not unlikely” that she made the statement attributed to her by the defendant. That the jury was concerned with the "consent” element was demonstrated by one of its questions to the court during deliberations which inquired, "[w]hen did mutual consent of no sexual relationship occur?”. In our view, the jury was in the best position to determine whether the plaintiff was merely expressing displeasure or indicating her consent to the lack of a sexual relationship, and we decline to disturb that determination. Accordingly, the verdict in favor of the defendant was based on a fair interpretation of the evidence and is hereby reinstated. Rubin, J. P., Spatt and Sullivan, JJ., concur.