Paccione v. Paccione

202 A.D.2d 224, 608 N.Y.S.2d 455

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 8, 1994
• Status: Published

Opinion

—Order, Supreme Court, Suffolk County (James Doyle, J.), entered on or about January 27, 1992 which, inter alia, denied plaintiff’s motion for summary judgment on her cause of action for divorce on the ground of cruel and inhuman treatment, and awarded various items of interim relief, including interim child support in favor of defendant retroactive to May 15, 1991, unanimously modified, on the law and the facts, to grant plaintiff partial summary judgment on her cause of action for divorce on the ground of cruel and inhuman treatment, and to delete the award of interim child support and to refer the matter to the trial court and as so modified the order is otherwise affirmed, without costs.

Summary judgment should have been granted plaintiff on her cause of action for divorce on the ground of cruel and inhuman treatment in view of the findings of the Family Court, rendered in the parties’ earlier cross petitions for a protective order, that over the course of a year defendant had committed various abusive acts, including striking plaintiff in the face with such force as to fracture her jaw, threatening to kill her and harm her friends, and accusing her of infidelities. These findings are entitled to collateral estoppel effect, adequately demonstrate a course of conduct by defendant so endangering the physical or mental well being of plaintiff as to make her continued cohabitation with defendant unsafe or improper, and warrant judgment in plaintiff’s favor notwithstanding the 18-year duration of the marriage (see, Brady v Brady, 64 NY2d 339, 343, 345; Spinelli v Spinelli, 160 AD2d 992, 993). We refer the matter of child support to the trial court due to the circumstances of this case. Concur — Murphy, P. J., Kupferman, Asch, Williams and Tom, JJ.