Mitry v. Vezza

255 A.D.2d 370, 679 N.Y.S.2d 695, 1998 N.Y. App. Div. LEXIS 11807

Opinion

—In an action for a divorce and ancillary relief, the defendant appeals from a judgment of the Supreme Court, Westchester County (Nicolai, J.), dated November 10, 1997, which is in favor of the plaintiff awarding him a divorce on the ground of cruel and inhuman treatment. The defendant’s notice of appeal from the decision dated October 14, 1997, is deemed a premature notice of appeal from the judgment (see, CPLR 5520 [a]).

Ordered that the judgment is affirmed, with costs.

“The determination of the trial court as a fact finder on the issue of cruel and inhuman treatment will not be lightly disturbed on appeal” (Soto v Soto, 216 AD2d 455, 456; see also, Kalinich v Kalinich, 205 AD2d 736). Giving due deference to the trial court’s assessment of the credibility of the witnesses, it properly found that the plaintiff was entitled to a divorce on the ground of cruel and inhuman treatment (see, Domestic Relations Law § 170 [1]), as he demonstrated that the defendant’s conduct “so endanger [ed] the physical or mental well being of the plaintiff as render [ed] it unsafe or improper for the plaintiff to cohabit with the defendant” (Domestic Relations Law § 170 [1]; see, Soto v Soto, supra; Gray v Gray, 245 AD2d 584; Wilbourne v Wilbourne, 173 AD2d 289). Rosenblatt, J. P., O’Brien, Sullivan, Krausman and Florio, JJ., concur.