M.M., Plaintiff-Appellant, v. E.M., Defendant-Respondent. (1998)

Order, Supreme Court, New York County (Walter Tolub, J.), entered May 15, 1997, which granted the motion of defendant to dismiss the complaint for failure to state a cause of action, unanimously reversed, on the law, without costs, to the extent appealed from as limited by the briefs, the motion denied, and the complaint reinstated.

The parties, who were married on October 25, 1969 and separated in June 1992, have one child, who is approximately 27 years old.   Plaintiff-husband commenced the instant action on March 23, 1995 seeking a divorce on the grounds of cruel and inhuman treatment (Domestic Relations Law § 170[1] ).   The complaint recites eight incidents and alleges, inter alia, that defendant became intoxicated on a regular basis, criticized plaintiff, his family and his career, and embarrassed plaintiff before his friends and colleagues.   It also alleges that, on one occasion, defendant struck plaintiff.

Defendant-wife answered, denying the allegations of the complaint, counterclaimed for divorce on the grounds of cruelty and abandonment and thereafter moved to dismiss the complaint on the ground that it fails to state a cause of action (CPLR 3211[a][7];  3016[c] ).  The moving papers assert that the complaint is vague with respect to the time of the alleged cruelty, but suggests that it took place between August 1990 and May 1991, a period which plaintiff spent largely in Italy, where he taught ancient history.

In granting the motion to dismiss, Supreme Court noted that the parties had separated in 1992 and that “plaintiff claims he was so devastated by his wife's action that it took him nearly three years before he had the strength to commence an action.   The majority of the incidents deal with defendant's alleged drunkenness and the resulting embarrassment sustained by the plaintiff.”   The memorandum decision concludes, “Taken as a whole and given the duration of the marriage, it is the opinion of the Court that the plaintiff has not established grounds under DRL § 170(1).”

 As stated in Brady v. Brady, 64 N.Y.2d 339, 343, 486 N.Y.S.2d 891, 476 N.E.2d 290, “a plaintiff seeking a divorce under the cruel and inhuman treatment subdivision must show serious misconduct, and not mere incompatibility.”  Domestic Relations Law § 170(1) requires that the plaintiff “generally 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” (supra, at 636, 486 N.Y.S.2d 891, 476 N.E.2d 290).   Duration of the marriage is significant in deciding whether the offending behavior is an indication of transient discord or substantial misconduct (Rieger v. Rieger, 161 A.D.2d 227, 228, 554 N.Y.S.2d 613, citing Hessen v. Hessen, 33 N.Y.2d 406, 411, 353 N.Y.S.2d 421, 308 N.E.2d 891).

Where a motion to dismiss is directed at the sufficiency of the pleadings, the question is not whether the complaint is artfully drafted.  “The court must accept the facts alleged in the complaint as true and then determine whether those facts fit within any cognizable legal theory” (Hirschhorn v. Hirschhorn, 194 A.D.2d 768, 599 N.Y.S.2d 613).   The complaint is accorded every reasonable inference (Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 634, 389 N.Y.S.2d 314, 357 N.E.2d 970), and affidavits may be considered for the purpose of remedying defects in the pleading (supra, at 636, 389 N.Y.S.2d 314, 357 N.E.2d 970).

 Here, although the alleged misconduct occurred over a relatively short period in a marriage of long duration, the allegations of the complaint, as supported by plaintiff's affidavit in opposition to the motion, assert that during this two-year period, when the parties lived together, defendant was intoxicated on a regular basis, and continually berated, ridiculed, and verbally abused plaintiff, his family, and his profession.   The complaint alleges that, on one occasion, defendant struck plaintiff with clenched fists, forcing plaintiff to lock himself in the bathroom to end the assault.   Inasmuch as this alleged conduct occurred whenever the parties lived together during this time period, defendant's conduct constitutes “more than mere incompatibility or occasional marital discord in a long-term marriage” (Smith v. Smith, 206 A.D.2d 255, 613 N.Y.S.2d 866, appeal dismissed, 84 N.Y.2d 977, 622 N.Y.S.2d 916, 647 N.E.2d 122).   Defendant's conduct is described by plaintiff as a “constant barrage of nightly drunken and vicious attacks”, causing him to leave the marital home in June 1992 and seek therapy to ameliorate the harm to his physical and mental well-being.   Therefore, the complaint, as supplemented by plaintiff's affidavit, is sufficient to allege that continued cohabitation would have been harmful to plaintiff's mental health (Brady v. Brady, supra, at 343, 486 N.Y.S.2d 891, 476 N.E.2d 290;  Blaise v. Blaise, 206 A.D.2d 715, 716, 614 N.Y.S.2d 779).

MEMORANDUM DECISION.