Opinion
May 31, 1996
Appeal from the Supreme Court, Niagara County, Howe, J.
Present — Pine, J.P., Wesley, Callahan, Doerr and Boehm, JJ.
Order unanimously reversed on the law without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum:
Upon our review of the record, we conclude that there is no support for the decision rendered by Supreme Court. At the bifurcated trial on the issue of grounds, plaintiff established that defendant's misconduct so endangered plaintiff's physical and mental well-being that it rendered continued cohabitation unsafe or improper ( see, Domestic Relations Law § 170). Defendant did not offer any proof. Based upon plaintiff's unrefuted testimony about defendant's acts of cruelty and their effect upon plaintiff's mental and physical health, we conclude that the record is sufficient to support plaintiff's cause of action for divorce on the ground of cruel and inhuman treatment ( see, Birnbaum v. Birnbaum, 177 A.D.2d 367, lv dismissed 79 N.Y.2d 1040). We remit the matter to Supreme Court to grant a judgment of divorce in favor of plaintiff.