Rojek v. Rojek

234 A.D.2d 1011, 651 N.Y.S.2d 813, 1996 N.Y. App. Div. LEXIS 13876

Opinion

—Order unanimously reversed on the law without costs, motion denied, complaint reinstated and new trial granted. Memorandum: Supreme Court erred in granting defendant’s motion to dismiss the complaint in this divorce action at the close of plaintiff’s proof. While a high degree of proof of cruel and inhuman treatment is required in a marriage of long duration and " 'an isolated act of mistreatment will rarely suffice’ ” (Wikiera v Wikiera, 233 AD2d 896, quoting Brady v Brady, 64 NY2d 339, 344), "one violent episode such as a severe beating” may nevertheless constitute cruel and inhuman treatment (Brady v Brady, supra, at 345). Plaintiff testified at trial that defendant struck her in the face with an open hand and then, about an hour later, choked her with both of his hands to the point where plaintiff thought she was going to die. Plaintiff further testified that defendant, to whom she has been married since 1979, was "yelling and cursing and carrying on like a lunatic” while choking her. Affording plaintiff’s proof every favorable inference (see, Marrow v Marrow, 124 AD2d 1000), we conclude that plaintiff established a prima facie case of cruel and inhuman treatment (see generally, Dalvi v Dalvi, 214 AD2d 641; cf., Wikiera v Wikiera, supra). Because the court erroneously dismissed the complaint at the close of plaintiff’s proof, a new trial must be granted (see, Marrow v Marrow, supra). (Appeal from Order of Supreme Court, Erie County, Kane, J.—Divorce.) Present—Pine, J. P., Lawton, Fallon, Doerr and Balio, JJ.