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Breen v. Breen

Appellate Division of the Supreme Court of New York, Second Department
May 15, 2000
272 A.D.2d 425 (N.Y. App. Div. 2000)

Opinion

Submitted March 31, 2000.

May 15, 2000.

In an action for a divorce and ancillary relief, the plaintiff wife appeals from an order of the Supreme Court, Nassau County (Jonas, J.), dated June 7, 1999, which granted that branch of the defendant husband's cross motion which was, in effect, to dismiss the first cause of action of the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action.

Steven D. Kommor, Garden City, N.Y., for appellant.

Before: FRED T. SANTUCCI, J.P., LEO F. McGINITY, DANIEL F. LUCIANO, ROBERT W. SCHMIDT, JJ.


DECISION ORDER

ORDERED that the order is affirmed, without costs or disbursements.

The Supreme Court properly granted that branch of the defendant's motion which was, in effect, to dismiss the first cause of action for failure to state a cause of action (see, CPLR 3211[a][7]). A cause of action for divorce based on cruel and inhuman treatment requires a plaintiff to "show serious misconduct, and not mere incompatibility", that is, "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, 64 N.Y.2d 339, 343; see, Hessen v. Hessen, 33 N.Y.2d 406; Garver v. Garver, 253 A.D.2d 512). Accepting as true the factual allegations of the complaint (see, Campaign for Fiscal Equity v. State of New York, 86 N.Y.2d 307, 318; Farmer v. Green Bus Lines, 254 A.D.2d 389), there is no reasonable view of the facts which supports such a cause of action.

SANTUCCI, J.P., McGINITY, LUCIANO and SCHMIDT, JJ., concur.


Summaries of

Breen v. Breen

Appellate Division of the Supreme Court of New York, Second Department
May 15, 2000
272 A.D.2d 425 (N.Y. App. Div. 2000)
Case details for

Breen v. Breen

Case Details

Full title:EILEEN A. BREEN, APPELLANT, v. GEORGE D. BREEN, RESPONDENT

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: May 15, 2000

Citations

272 A.D.2d 425 (N.Y. App. Div. 2000)
708 N.Y.S.2d 326

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