Milone v. Milone

266 A.D.2d 363, 698 N.Y.S.2d 173, 1999 N.Y. App. Div. LEXIS 11506

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1999
• Status: Published

Opinion

—In an action for a divorce and ancillary relief, the plaintiff husband appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Westchester County, for the Supreme Court, Nassau County (Shapiro, J.), entered August 3, 1998, as, after a nonjury trial, dismissed the second cause of action alleging cruel and inhuman treatment.

Ordered that the judgment is affirmed insofar as appealed from, with costs.

The Supreme Court erred in restricting the proof at trial to the specific times and occurrences alleged in the complaint, and in refusing to permit evidence designed to show a general course of conduct by the defendant (see, Rusoff v Rusoff, 20 AD2d 794; Rasmussen v Rasmussen, 278 App Div 670). However, since there wasXno showing that the excluded evidence would have had a substantial influence upon the result of the trial, reversal is not warranted (see, CPLR 2002; Walker v State of New York, 111 AD2d 164). Altman, J. P., Florio, H. Miller and Schmidt, JJ., concur.