Opinion
November 10, 1986
Appeal from the Supreme Court, Erie County, Francis, J.
Present — Dillon, P.J., Callahan, Boomer, Balio and Lawton, JJ.
Judgment unanimously reversed on the law without costs and new trial granted. Memorandum: The trial court erred in dismissing plaintiff's complaint for a divorce at the conclusion of the plaintiff's case (see, Crowley v Brown, 91 A.D.2d 601; Bartkowiak v St. Adalbert's R.C. Church Socy., 40 A.D.2d 306). Plaintiff placed into evidence a petition and order of the Family Court in a filiation proceeding brought against the defendant, which determined that defendant was the father of a child born to another woman on January 13, 1978. This, together with the admission of the defendant at an examination before trial that he was paying support for said child, is sufficient to support a prima facie case of adultery to defeat defendant's motion to dismiss (Marmorale v Marmorale, 103 A.D.2d 736; Salicco v Salicco, 125 Misc.2d 137; Trumpet v Trumpet, 215 N.Y.S.2d 921 [1961]; Barbara v Barbara, 57 N.Y.S.2d 156 [Kings County 1945]).
Trial court, apparently in the belief that defendant, on plaintiff's direct case, established the defense of recrimination under Domestic Relations Law § 171 (4), did not pass upon the sufficiency of plaintiff's proof in this regard. Such finding had to have been based primarily upon defendant's testimony. Such testimony violates CPLR 4502 (a) and should have been disregarded (Hendery v Hendery, 101 A.D.2d 624). The fact that plaintiff's counsel belatedly objected to the testimony does not alter the result (Taylor v Taylor, 123 App. Div. 220; Admire v Admire, 180 Misc. 68). Plaintiff denied many of the allegations testified to by defendant, thereby raising issues of fact that can only be determined at the close of all the proof (Nicholas v Reason, 84 A.D.2d 915).
Plaintiff likewise established a prima facie case for a divorce upon the grounds of cruel and inhuman treatment. Giving plaintiff's proof every favorable inference, it establishes a course of adulterous conduct by defendant which extended into the five years immediately preceding the commencement of this action. Such adulterous conduct has been held to be sufficient proof of cruel and inhuman treatment to warrant the granting of a divorce (Fritz v Fritz, 88 A.D.2d 778; Hendery v Hendery, supra). Therefore, plaintiff's cause of action for cruel and inhuman treatment should not have been dismissed at the close of plaintiff's case.