Opinion
2001-03344
Argued March 18, 2002.
April 1, 2002.
In an action for a divorce and ancillary relief, the defendant husband appeals from an order of the Supreme Court, Westchester County (Tolbert, J.), entered March 7, 2001, which denied his motion pursuant to CPLR 4404 to set aside a determination of the same court, granting the plaintiff's application pursuant to CPLR 4401 for judgment as a matter of law, made at the close of all evidence in a jury trial on the issue of fault.
Peter F. Davey, New York, N.Y., appellant pro se.
Kelly Knaplund, White Plains, N.Y. (Mary F. Kelly of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN, THOMAS A. ADAMS, JJ.
ORDERED that the order is reversed, on the law, the defendant's motion is granted, the determination granting the plaintiff's application pursuant to CPLR 4401 for judgment as a matter of law is vacated, and that application is denied, and the defendant is granted a new trial on the issue of fault, with costs to abide the event.
The plaintiff sought a divorce on the ground of cruel and inhuman treatment. At the trial, the plaintiff made an application pursuant to CPLR 4401 for judgment as a matter of law at the close of all evidence. The Supreme Court granted the application. Thereafter, the defendant moved to set aside the determination granting the plaintiff's motion and the court denied the motion.
To obtain a divorce on the ground of cruel and inhuman treatment, the plaintiff must show conduct of the defendant spouse which "so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant" (Domestic Relations Law § 170). When the marriage is one of long duration, a high degree of proof of cruel and inhuman treatment is required (Biegeleisen v. Biegeleisen, 253 A.D.2d 474; see Palin v. Palin, 213 A.D.2d 707).
The parties were married for over 30 years. The plaintiff failed to establish facts which would, as a matter of law, satisfy the high degree of proof of cruel and inhuman treatment required when the marriage is one of long duration (see Biegeleisen v. Biegeleisen, supra). Accordingly, the Supreme Court improperly granted the plaintiff's motion pursuant to CPLR 4401 for judgment as a matter of law.
SANTUCCI, J.P., KRAUSMAN, GOLDSTEIN and ADAMS, JJ., concur.
Motion by the respondent on an appeal from an order of the Supreme Court, Westchester County, dated December 14, 2000, to strike portions of the appellant's brief on the grounds, inter alia, that it raises arguments that are not properly before this court. By decision and order on motion dated December 20, 2001, that branch of the motion which was to strike portions of the appellant's brief on the ground that it raises arguments which are not properly before this court was held in abeyance, and was referred to the Justices hearing the appeal for determination upon the argument or submission of the appeal.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, and upon the argument of the appeal, it is
ORDERED that the branch of the motion which is to strike portions of the appellant's brief on the grounds, inter alia, that it raises arguments that are not properly before this court is granted to the extent that the defendant husband's challenge to relief granted in orders other than the order appealed from, i.e., the defendant's exclusion from the marital residence, and an award of counsel fees, and references to matters not referred to in the parties' appendices, are stricken from the defendant's main brief and reply brief and have not been considered on the determination of the appeal and that branch of the motion is otherwise denied.
SANTUCCI, J.P., KRAUSMAN, GOLDSTEIN and ADAMS, JJ., concur.