BRAGAR v. BRAGAR (1998)

Order, Supreme Court, New York County (Walter Tolub, J.), entered on or about June 19, 1997, which, to the extent appealed from, denied plaintiff's application for the appointment of a forensic psychiatrist to examine the parties and their son, and denied part of his application for leave to amend his verified complaint, unanimously affirmed, without costs.

 We agree with the IAS court that the appointment of a forensic psychiatrist would serve no legitimate purpose (see, Richard D. v. Wendy P., 47 N.Y.2d 943, 419 N.Y.S.2d 949, 393 N.E.2d 1022;  Kaplansky v. Kaplansky, 212 A.D.2d 667, 668, 622 N.Y.S.2d 766), where the child, then age 15, was already in therapy, and sufficient facts regarding the child's reasoning underlying his estrangement could be developed at trial (see, W.P. v. R.P., 61 N.Y.2d 777, 473 N.Y.S.2d 160, 461 N.E.2d 297).

 The court also properly denied the relevant part of plaintiff's motion to amend the complaint to add a cause of action for cruel and inhuman treatment (Domestic Relations Law § 170[1] ), since, in these respects, plaintiff failed to allege “serious misconduct, and not mere incompatibility”, which “course of conduct ․ 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, 486 N.Y.S.2d 891, 476 N.E.2d 290).

MEMORANDUM DECISION.