SMITH v. SMITH (1998)

Supreme Court erred in granting defendant's motion at the close of plaintiff's proof to dismiss the complaint seeking a divorce based upon defendant's cruel and inhuman treatment.  “Courts ‘have required a high degree of proof of cruel and inhuman treatment where there is a marriage of long duration and an isolated act of mistreatment will rarely suffice’ ” (Van Vlack v. Van Vlack, 233 A.D.2d 895, 649 N.Y.S.2d 255, quoting Brady v. Brady, 64 N.Y.2d 339, 344, 486 N.Y.S.2d 891, 476 N.E.2d 290).   Defendant argued, and the court agreed, that plaintiff had demonstrated no more than strained, unpleasant relations and incompatibility, and thus had failed to make out a prima facie case of cruel and inhuman treatment (see, Van Vlack v. Van Vlack, supra;  Buckley v. Buckley, 93 A.D.2d 973, 974, 461 N.Y.S.2d 619).  We disagree.

 “In considering the motion for judgment as a matter of law, the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant” (Szczerbiak v. Pilat, 90 N.Y.2d 553, 556, 664 N.Y.S.2d 252, 686 N.E.2d 1346).   A motion for judgment as a matter of law should not be granted where “resolution of disputed facts depend upon credibility determinations” (Fenton v. Ives, 229 A.D.2d 704, 705, 645 N.Y.S.2d 150).   Applying that standard, we conclude that plaintiff's evidence was sufficient to establish that “defendant's misconduct was substantial and distinctly not transient” (Blaise v. Blaise, 206 A.D.2d 715, 716, 614 N.Y.S.2d 779).   Further, through her own testimony and that of a psychiatrist, plaintiff “established that defendant's misconduct so endangered plaintiff's physical and mental well-being that it rendered continued cohabitation unsafe or improper” (Lewis v. Lewis, 227 A.D.2d 908, 909, 643 N.Y.S.2d 271;  see also, Birnbaum v. Birnbaum, 177 A.D.2d 367, 576 N.Y.S.2d 514, lv. dismissed 79 N.Y.2d 1040, 584 N.Y.S.2d 449, 594 N.E.2d 943).  Consequently, the complaint must be reinstated and a new trial granted (see, Marrow v. Marrow, 124 A.D.2d 1000, 508 N.Y.S.2d 789) before a different Justice.

 The court further erred in denying plaintiff's motion to amend the complaint to add a cause of action based upon constructive abandonment (see, Domestic Relations Law § 170[2] ).   A divorce may be granted based upon constructive abandonment if plaintiff demonstrates that defendant unjustifiably failed and refused to engage in marital relations for at least one year prior to the commencement of the action (see, Pascarella v. Pascarella [appeal No. 2], 210 A.D.2d 915, 916, 621 N.Y.S.2d 821).   Here, unlike in Caprise v. Caprise (143 A.D.2d 968, 971, 533 N.Y.S.2d 622), the case relied upon by the court, plaintiff's evidence demonstrated more than a single rebuffed request for sex or “vague and unspecific” allegations of lack of interest.   Plaintiff testified that the parties had not engaged in sexual relations for several years when she specifically requested that defendant have sexual relations with her.   At that point, defendant made a disparaging remark about plaintiff's weight, told plaintiff that she was no longer attractive to him and removed himself from the marital bedroom permanently.   That testimony is sufficient to make out a prima facie case that defendant unjustifiably refused to fulfill the basic obligations springing from the marriage contract, and the court should have allowed the amendment.

Order unanimously reversed on the law with costs, motion denied, complaint reinstated and new trial granted.

MEMORANDUM: