Stroke v. Stroke

283 A.D.2d 992, 724 N.Y.S.2d 391, 2001 N.Y. App. Div. LEXIS 4620

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 2, 2001
• Status: Published

Opinion

—Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: Supreme Court erred in denying defendant’s motion seeking dismissal of the complaint for failure to state a cause of action for divorce on the ground of cruel and inhuman treatment (see, CPLR 3211 [a] [7]; Domestic Relations Law § 170 [1]). “Accepting as true the factual allegations of the complaint * * * there is no reasonable view of the facts which supports such a cause of action” (Breen v Breen, 272 AD2d 425, 426; cf., Vestal v Vestal, 273 AD2d 461, 462). A plaintiff seeking a divorce on the ground of cruel and inhuman treatment “must show serious misconduct, and not mere incompátibility” (Brady v Brady, 64 NY2d 339, 343), particularly where, as here, a marriage of long duration is involved (see, Brady v Brady, supra, at 344-345; Van Vlack v Van Vlack, 233 AD2d 895). Although allegations of physical violence are not necessary and misconduct consisting of verbal and mental abuse may suffice (see, Vaiana v Vaiana, 272 AD2d 916, 917), the conduct alleged herein does not constitute the requisite “calculated cruelty” that would render cohabitation unsafe or improper (Feeney v Feeney, 241 AD2d 510). “The record establishes, at best, ‘strained, unpleasant relations and incompatibility’, which is not sufficient to support a finding of cruel and inhuman treatment in a long-term marriage” (Wikiera v Wikiera, 233 AD2d 896). (Appeal from Order of Supreme Court, Wyoming County, Notaro, J. — Dismiss Pleading.) Present— Pigott, Jr., P. J., Wisner, Scudder, Kehoe and Burns, JJ.