Rodriguez v. Rodriguez

73 A.D.2d 641, 422 N.Y.S.2d 749, 1979 N.Y. App. Div. LEXIS 14463

Opinion

— In a matrimonial action, defendant appeals from a judgment of the Supreme Court, Queens County, dated December 4, 1978, which, after a nonjury trial, inter alia, (1) granted plaintiff a divorce based on cruel and inhuman treatment, (2) dismissed her counterclaim for a separation, and (3) awarded her $75 per week for the support of each of the three children of the marriage. Judgment modified, on the law, by deleting therefrom the first, third, fourth, fifth, sixth, seventh, eighth, tenth and eleventh decretal paragraphs thereof, and substituting therefor a provision providing that plaintiff’s complaint is dismissed. As so modified, judgment affirmed, with costs to the defendant. In light of the length of this marriage of 21 years, the husband’s provocations and his ability to make alternative arrange-merits, defendant’s unwillingness to assist him in administering his needed dialysis treatments did not constitute cruel and inhuman treatment such as to endanger his physical or mental well-being (Hessen v Hessen, 33 NY2d 406; Rios v Rios, 34 AD2d 325, affd 29 NY2d 840; Knox v Knox, 70 AD2d 652). Damiani, J. P., O’Connor, Lazer and Rabin, JJ., concur.