Broglio v. Broglio

44 A.D.2d 705, 354 N.Y.S.2d 688, 1974 N.Y. App. Div. LEXIS 5194

Opinion

In an action for divorce on the ground of cruel and inhuman treatment, plaintiff appeals from a judgment of the Supreme Court, Nassau County, entered June 4, 1973, which, after a non jury trial, dismissed the complaint and awarded defendant alimony of $1,000 per month and a counsel fee of $5,000. Judgment reversed, on the law, without costs, and new trial granted. The questions of fact have not been considered. Pending entry of judgment after the new trial, plaintiff shall pay defendant temporary alimony of $800 per month commencing May 1, 1974 and within 20 days after entry of the order to be made hereon he shall pay her $1,000 on account of counsel fees, which is in addition to the $2,500 already paid therefor under the judgment now being reversed. Neither of these awards shall preclude a different determination by the trial court after the new trial. The emphasis placed by Special Term in its memorandum decision on the fact that plaintiff’s testimony is “ completely uncorroborated or unsupported ” mandates a reversal. The law in New York does not require corroboration for proof of acts of cruel and inhuman treatment as a ground for divorce (Domestic Relations Law, § 170, subd. [1]). In addition, Special Term made no findings of fact on which to base a disbelief of plaintiff’s testimony to support the conclusion that plaintiff failed to establish his cause of action. Martuseello, Acting P. J., Latham, Shapiro, Benjamin and Munder, JJ., concur.