Bragar v. Bragar

Appellate Division of the Supreme Court of New York

Bragar v. Bragar

246 A.D.2d 334, 667 N.Y.S.2d 364, 1998 N.Y. App. Div. LEXIS 53

Appellate Division of the Supreme Court of the State of New York·Decided January 8, 1998·Published

Opinion

Order, Supreme Court, New York County (Walter Tolub, J.), entered on or about June 19, 1997, which, to the extent appealed from, denied plaintiffs application for the appointment of a forensic psychiatrist to examine the parties and their son, and denied part of his application for leave to amend his verified complaint, unanimously affirmed, without costs.

We agree with the IAS Court that the appointment of a forensic psychiatrist would serve no legitimate purpose (see, Richard D. v Wendy P., 47 NY2d 943; Kaplansky v Kaplansky, 212 AD2d 667, 668), where the child, then age 15, was already in therapy, and sufficient facts regarding the child’s reasoning underlying his estrangement could be developed at trial (see, W. P. v R.P., 61 NY2d 777).

The court also properly denied the relevant part of plaintiff’s motion to amend the complaint to add a cause of action for cruel and inhuman treatment (Domestic Relations Law § 170 [1]), since, in these respects, plaintiff failed to allege “serious misconduct, and not mere incompatibility”, which “course of conduct * * * is harmful to the physical or mental health of the plaintiff and makes cohabitation unsafe or improper” (Brady v Brady, 64 NY2d 339, 343). Concur—Sullivan, J. P., Rosenberger, Rubin and Tom, JJ.

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Order, Supreme Court, New York County (Walter Tolub, J.), entered on or about June 19, 1997, which, to the extent appealed from, denied plaintiffs application for the appointment of a forensic psychiatrist to examine the parties and their son, and denied part of his application for leave to amend his verified complaint, unanimously affirmed, without costs.

We agree with the IAS Court that the appointment of a forensic psychiatrist would serve no legitimate purpose (see, Richard D. v Wendy P., 47 NY2d 943; Kaplansky v Kaplansky, 212 AD2d 667, 668), where the child, then age 15, was already in therapy, and sufficient facts regarding the child’s reasoning underlying his estrangement could be developed at trial (see, W. P. v R.P., 61 NY2d 777).

The court also properly denied the relevant part of plaintiff’s motion to amend the complaint to add a cause of action for cruel and inhuman treatment (Domestic Relations Law § 170 [1]), since, in these respects, plaintiff failed to allege “serious misconduct, and not mere incompatibility”, which “course of conduct * * * is harmful to the physical or mental health of the plaintiff and makes cohabitation unsafe or improper” (Brady v Brady, 64 NY2d 339, 343). Concur—Sullivan, J. P., Rosenberger, Rubin and Tom, JJ.

Bragar v. Bragar, 246 A.D.2d 334, 667 N.Y.S.2d 364, 1998 N.Y. App. Div. LEXIS 53 (N.Y. Ct. App. 1998).

Pincite

246 A.D.2d 334 (Bragar v. Bragar) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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