Opinion
October 25, 1990
Appeal from the Supreme Court, New York County (Elliott Wilk, J.).
The acts of physical violence testified to by plaintiff, which included slapping, choking, and beating her with a shoe, were not trivial, but were sufficient to constitute a pattern of grievous misconduct which presented an actual threat to plaintiff's health and safety. (See, Lind v. Lind, 89 A.D.2d 518, affd 58 N.Y.2d 965. ) Defendant's claim of provocation, raised for the first time on appeal, is unsupported by the testimony adduced at trial. Nor did plaintiff's failure to introduce into evidence police reports or to call witnesses to corroborate her testimony require dismissal of the complaint. The witnesses to the beatings in this case, all members of defendant's immediate family, were not within plaintiff's control and could, moreover, be deemed hostile to plaintiff's cause. Accordingly, no negative inference can arise as a result of plaintiff's failure to call these witnesses (cf., Averett v. Averett, 189 App. Div. 250, affd 232 N.Y. 519; but see, Borg v. Borg, 107 A.D.2d 777 , lv denied 65 N.Y.2d 606).
We have considered defendant's remaining arguments and find them to be without merit.
Concur — Ross, J.P., Rosenberger, Asch and Smith, JJ.