HEARST v. HEARST (2007)

Order, Supreme Court, New York County (Laura Visitación-Lewis, J.), entered March 23, 2006, which, after a nonjury trial, dismissed defendant husband's counterclaim for divorce on the ground of cruel and inhuman treatment, without prejudice to defendant's claims arising out of the titling of assets in plaintiff's sole name, unanimously affirmed, with costs.

 The husband, who suffered from debilitating ailments predating this 1990 marriage, failed to show that the further deterioration of his already fragile physical and mental condition in the years preceding commencement of the action was in any way caused by any misconduct by the wife in titling assets in her sole name (see Hessen v. Hessen, 33 N.Y.2d 406, 411-412, 353 N.Y.S.2d 421, 308 N.E.2d 891 [1974] ).   Similarly, the husband's testimony that the wife's financial demands caused him stress shows mere marital discord, not misconduct that so endangered his health as to make it unsafe or improper to cohabit with her (see Brady v. Brady, 64 N.Y.2d 339, 343, 486 N.Y.S.2d 891, 476 N.E.2d 290 [1985];  cf. Omahen v. Omahen 289 A.D.2d 890, 891-892, 735 N.Y.S.2d 236 [2001], lv. denied 97 N.Y.2d 613, 742 N.Y.S.2d 606, 769 N.E.2d 353 [2002];  Wilson v. Wilson, 244 A.D.2d 646, 647, 663 N.Y.S.2d 710 [1997] ).   We have considered the husband's other arguments, including his challenges to the court's evidentiary rulings, and find them unavailing.