Opinion
February 27, 1987
Appeal from the Supreme Court, Ontario County, Cicoria, J.
Present — Dillon, P.J., Callahan, Green, Balio and Davis, JJ.
Judgment reversed on the law without costs, and complaint dismissed. All concur, Davis, J., not participating. Memorandum: The trial court erred in granting plaintiff a divorce on the ground of cruel and inhuman treatment. In a marriage of long duration such as this one, a high degree of proof is required to establish cruel and inhuman treatment (see, Brady v. Brady, 64 N.Y.2d 339, 345; Hessen v. Hessen, 33 N.Y.2d 406, 411-412; Kleindinst v. Kleindinst, 116 A.D.2d 988, 989; Passantino v Passantino, 87 A.D.2d 973, 974). At trial plaintiff testified that the marriage lacked communication and sexual intimacy, that defendant pushed her a few times causing minor bruises, and, as a result of such conduct, she gained excessive weight. Defendant denied the allegations of fault.
The record establishes, at best, only strained relations and incompatibility which are insufficient to sustain a divorce based on cruel and inhuman treatment (see, Kleindinst v. Kleindinst, supra; Buckley v. Buckley, 93 A.D.2d 973, 974; cf., Falcone v Falcone, 112 A.D.2d 796, 797). Plaintiff presented no medical proof to establish that her health was adversely affected by defendant's alleged conduct (see, Warguleski v. Warguleski, 79 A.D.2d 1107; Gemayel v. Gemayel, 63 A.D.2d 831, 832). Since the divorce should not have been granted, we need not reach the other claims raised which relate to the trial court's distribution of the marital property.