Breen v. Breen

Appellate Division of the Supreme Court of New York

Breen v. Breen

272 A.D.2d 425, 708 N.Y.S.2d 326, 2000 N.Y. App. Div. LEXIS 5572

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 15, 2000

StatusPublished

Cited by2 cases

This text of 272 A.D.2d 425 (Breen v. Breen) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Breen v. Breen, 272 A.D.2d 425, 708 N.Y.S.2d 326, 2000 N.Y. App. Div. LEXIS 5572 (N.Y. Ct. App. 2000).

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Opinion

—In an action for a divorce and ancillary relief, the plaintiff wife appeals from an order of the Supreme Court, Nassau County (Jonas, J.), dated June 7, 1999, which granted that branch of the defendant husband’s cross motion which was, in effect, to dismiss the first cause of action of the [426]*426complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action.

Ordered that the order is affirmed, without costs or disbursements.

The Supreme Court properly granted that branch of the defendant’s motion which was, in effect, to dismiss the first cause of action for failure to state a cause of action (see, CPLR 3211 [a] [7]). A cause of action for divorce based on cruel and inhuman treatment requires a plaintiff to “show serious misconduct, and not mere incompatibility”, that is, “a course of conduct by the defendant spouse which is harmful to the physical or mental health of the plaintiff and makes cohabitation unsafe or improper” (Brady v Brady, 64 NY2d 339, 343; see, Hessen v Hessen, 33 NY2d 406; Garver v Garver, 253 AD2d 512). Accepting as true the factual allegations of the complaint (see, Campaign for Fiscal Equity v State of New York, 86 NY2d 307, 318; Farmer v Green Bus Lines, 254 AD2d 389), there is no reasonable view of the facts which supports such a cause of action. Santucci, J. P., McGinity, Luciano and Schmidt, JJ., concur.

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—In an action for a divorce and ancillary relief, the plaintiff wife appeals from an order of the Supreme Court, Nassau County (Jonas, J.), dated June 7, 1999, which granted that branch of the defendant husband’s cross motion which was, in effect, to dismiss the first cause of action of the [426]*426complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action.

Ordered that the order is affirmed, without costs or disbursements.

The Supreme Court properly granted that branch of the defendant’s motion which was, in effect, to dismiss the first cause of action for failure to state a cause of action (see, CPLR 3211 [a] [7]). A cause of action for divorce based on cruel and inhuman treatment requires a plaintiff to “show serious misconduct, and not mere incompatibility”, that is, “a course of conduct by the defendant spouse which is harmful to the physical or mental health of the plaintiff and makes cohabitation unsafe or improper” (Brady v Brady, 64 NY2d 339, 343; see, Hessen v Hessen, 33 NY2d 406; Garver v Garver, 253 AD2d 512). Accepting as true the factual allegations of the complaint (see, Campaign for Fiscal Equity v State of New York, 86 NY2d 307, 318; Farmer v Green Bus Lines, 254 AD2d 389), there is no reasonable view of the facts which supports such a cause of action. Santucci, J. P., McGinity, Luciano and Schmidt, JJ., concur.

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Bluebook (online)

272 A.D.2d 425, 708 N.Y.S.2d 326, 2000 N.Y. App. Div. LEXIS 5572, Counsel Stack Legal Research, https://law.counselstack.com/opinion/breen-v-breen-nyappdiv-2000.

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