Opinion
Filed May 2, 2001.
Appeal from Order of Supreme Court, Wyoming County, Notaro, J. — Dismiss Pleading.
PRESENT: PIGOTT, JR., P.J., WISNER, SCUDDER, KEHOE AND BURNS, JJ.
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). "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 A.D.2d 425, 426; cf., Vestal v. Vestal, 273 A.D.2d 461, 462). A plaintiff seeking a divorce on the ground of cruel and inhuman treatment "must show serious misconduct, and not mere incompatibility" ( Brady v. Brady, 64 N.Y.2d 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 A.D.2d 895). Although allegations of physical violence are not necessary and misconduct consisting of verbal and mental abuse may suffice ( see, Vaiana v. Vaiana, 272 A.D.2d 916, 917), the conduct alleged herein does not constitute the requisite "calculated cruelty" that would render cohabitation unsafe or improper ( Feeney v. Feeney, 241 A.D.2d 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 A.D.2d 896).