Ober v. Rogers-Ober

Appellate Division of the Supreme Court of New York

Ober v. Rogers-Ober

287 A.D.2d 282, 731 N.Y.S.2d 7, 2001 N.Y. App. Div. LEXIS 9319

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

DecidedOctober 9, 2001

StatusPublished

Cited by1 cases

This text of 287 A.D.2d 282 (Ober v. Rogers-Ober) 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

Ober v. Rogers-Ober, 287 A.D.2d 282, 731 N.Y.S.2d 7, 2001 N.Y. App. Div. LEXIS 9319 (N.Y. Ct. App. 2001).

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Opinions

—Judgment, Supreme Court, New York County (Joan Lobis, J.), entered April 17, 2000, after a nonjury trial, dismissing this action for divorce, reversed, on the law and the facts, without costs, judgment of divorce granted in favor of plaintiff based upon cruel and inhuman treatment and the matter remanded to the trial court for further proceedings.

Cognizant of the deference to be accorded to the findings of the trial court, we nevertheless find that plaintiffs generally unrebutted testimony, which was not found to be incredible, established by a preponderance of the evidence that defendant committed acts constituting cruel and inhuman treatment. Domestic Relations Law § 170 (1) requires a showing that the incidents of physical and verbal abuse testified to by plaintiff actually endangered his physical or mental well-being to such an extent that it is unsafe or improper for plaintiff to cohabit with defendant. In order to make such a showing, it is unnecessary to prove criminal conduct or actual physical or mental injury. “A pattern of conduct which includes verbal abuse and physical harassment is sufficient” (Bulger v Bulger, 88 AD2d 895, 896 [citations omitted]).

Also, a less stringent standard of proof is generally applied where, as here, there is a childless marriage of relatively short duration. Thus, despite the fact that plaintiff neither sought nor apparently needed medical or psychiatric treatment, did not seek a court order of protection, and was not permanently driven from the marital home by defendant’s behavior, the clear inference to be drawn from the trial evidence is that defendant’s conduct during the period in question presents a sufficient threat to plaintiffs mental and physical well-being as to constitute cruel and inhuman treátment within the meaning of the statute. Concur — Williams, J. P., Tom, Andrias and Lerner, JJ.

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—Judgment, Supreme Court, New York County (Joan Lobis, J.), entered April 17, 2000, after a nonjury trial, dismissing this action for divorce, reversed, on the law and the facts, without costs, judgment of divorce granted in favor of plaintiff based upon cruel and inhuman treatment and the matter remanded to the trial court for further proceedings.

Cognizant of the deference to be accorded to the findings of the trial court, we nevertheless find that plaintiffs generally unrebutted testimony, which was not found to be incredible, established by a preponderance of the evidence that defendant committed acts constituting cruel and inhuman treatment. Domestic Relations Law § 170 (1) requires a showing that the incidents of physical and verbal abuse testified to by plaintiff actually endangered his physical or mental well-being to such an extent that it is unsafe or improper for plaintiff to cohabit with defendant. In order to make such a showing, it is unnecessary to prove criminal conduct or actual physical or mental injury. “A pattern of conduct which includes verbal abuse and physical harassment is sufficient” (Bulger v Bulger, 88 AD2d 895, 896 [citations omitted]).

Also, a less stringent standard of proof is generally applied where, as here, there is a childless marriage of relatively short duration. Thus, despite the fact that plaintiff neither sought nor apparently needed medical or psychiatric treatment, did not seek a court order of protection, and was not permanently driven from the marital home by defendant’s behavior, the clear inference to be drawn from the trial evidence is that defendant’s conduct during the period in question presents a sufficient threat to plaintiffs mental and physical well-being as to constitute cruel and inhuman treátment within the meaning of the statute. Concur — Williams, J. P., Tom, Andrias and Lerner, JJ.

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Bluebook (online)

287 A.D.2d 282, 731 N.Y.S.2d 7, 2001 N.Y. App. Div. LEXIS 9319, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ober-v-rogers-ober-nyappdiv-2001.

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