HEJNA v. REILLY (1997)

Appeal from an order of the Supreme Court (Teresi, J.), entered July 1, 1996 in Albany County, which denied defendant's motion to dismiss the complaint for failure to state a cause of action.

 We affirm Supreme Court's denial of defendant's CPLR 3211(a)(7) motion to dismiss plaintiff's complaint in this divorce action based upon cruel and inhuman treatment.   On such a motion, the court's sole inquiry is whether the facts alleged in the complaint fit within any cognizable legal theory, not whether there is evidentiary support for the complaint (see, Leon v. Martinez, 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511;  Pietrosanto v. NYNEX Corp., 195 A.D.2d 843, 844, 600 N.Y.S.2d 802).   A complaint seeking a divorce on the ground of cruel and inhuman treatment meets this test if it alleges 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 (see, Haydock v. Haydock, 222 A.D.2d 554, 555, 634 N.Y.S.2d 766).

 Plaintiff's complaint fits within these parameters as it alleges that defendant has denigrated her, has refused to have marital relations for an extended period, has committed an act of physical abuse, refuses to communicate with plaintiff, is excessively argumentative with plaintiff and the children, and has withheld financial assistance from plaintiff, all of which has endangered plaintiff's physical and mental well-being thereby rendering it unsafe or improper for her to cohabit with defendant (see, Stoothoff v. Stoothoff, 226 A.D.2d 209, 640 N.Y.S.2d 553).   Thus, it was properly sustained.

ORDERED that the order is affirmed, with costs.

WHITE, Justice.

CARDONA, P.J., and MERCURE, CASEY and CARPINELLO, JJ., concur.