Opinion
May 13, 1996
Appeal from the Supreme Court, Queens County (Modugno, J.H.O.).
Ordered that the judgment is reversed, on the law, without costs or disbursements, and the complaint is dismissed.
"It is well settled that a plaintiff seeking a divorce on the ground of cruel and inhuman treatment must show serious misconduct, not mere incompatibility ( see, Brady v. Brady, 64 N.Y.2d 339; Hessen v. Hessen, 33 N.Y.2d 406). * * * A plaintiff relying on this ground must show `a course of conduct by the defendant spouse which is harmful to the physical or mental health of the plaintiff and makes cohabitation unsafe or improper' ( Brady v. Brady, supra, at 343)" ( Del Gatto v. Del Gatto, 142 A.D.2d 545). Where, as here, the marriage is one of long duration, a high degree of proof is required ( see, Brady v Brady, supra; Palin v. Palin, 213 A.D.2d 707).
The conduct complained of consisted primarily of offensive name calling, disputes over finances, failure to speak or communicate for periods of time, failure to "sympathize", and failure to provide what, the wife believes, is a standard of living that the husband's income entitled her to enjoy. The wife testified that the conduct made her feel defeated and degraded, rendering her depressed. Although medical evidence is not required ( see, Hessen v. Hessen, supra, at 411), the wife admitted that she declined to seek such care when her family offered assistance in that area. Moreover, the wife continued to cohabit with the husband for two years after commencing the action, and shared the same bedroom in a one bedroom apartment.
While this conduct presumably served to make cohabitation unpleasant, the plaintiff failed to offer any evidence to establish that the defendant's conduct so endangered her physical or mental well being that it rendered continued cohabitation unsafe or improper, particularly where the plaintiff continued to cohabit for more than two years after the action was commenced ( see, Palin v. Palin, supra; Ostriker v. Ostriker, 203 A.D.2d 343, 344; Stagliano v. Stagliano, 132 A.D.2d 975, 976; William MM. v Kathleen MM., 203 A.D.2d 883). Thus, under these circumstances, and in this marriage of long duration, we conclude that the Judicial Hearing Officer erred in determining that the plaintiff was entitled to a divorce on the ground of cruel and inhuman treatment ( see, Brady v. Brady, supra; Clarkson v. Clarkson, 103 A.D.2d 964). Mangano, P.J., Miller, Ritter and Pizzuto, JJ., concur.