DESBONNET v. DESBONNET (2006)

In an action for a divorce and ancillary relief, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Pastoressa, J.), dated April 11, 2005, which granted the defendant's motion pursuant to CPLR 4404(a) to set aside a jury verdict in favor of the plaintiff and for judgment as a matter of law dismissing the complaint.

ORDERED that the order is affirmed, with costs.

 In an action for a divorce and ancillary relief on the ground of cruel and inhuman treatment, a motion pursuant to CPLR 4404(a) to set aside a jury verdict and for judgment as a matter of law will be granted where no rational jury could have reached the conclusion that the defendant's conduct constituted cruel and inhuman treatment based on the evidence presented at trial (see CPLR 4404[a];  Rose v. Rose, 18 A.D.3d 852, 795 N.Y.S.2d 472;  Fairweather v. Fairweather, 256 A.D.2d 537, 538, 682 N.Y.S.2d 873).   In order to constitute cruel and inhuman treatment, marital misconduct must be distinguished from mere incompatibility, and serious misconduct from trivial, based on the evidence presented at trial (see Brady v. Brady, 64 N.Y.2d 339, 486 N.Y.S.2d 891, 476 N.E.2d 290;  Hessen v. Hessen, 33 N.Y.2d 406, 410, 353 N.Y.S.2d 421, 308 N.E.2d 891;  Rose v. Rose, supra;  Davey v. Davey, 293 A.D.2d 444, 739 N.Y.S.2d 629;  Fairweather v. Fairweather, supra).

 The evidence proffered by the plaintiff did not rise to the level of cruel and inhuman treatment (see Bradley v. Bradley, 298 A.D.2d 485, 748 N.Y.S.2d 504;  Habib v. Habib, 278 A.D.2d 277, 717 N.Y.S.2d 317;  Biegeleisen v. Biegeleisen, 253 A.D.2d 474, 676 N.Y.S.2d 684;  cf. Rose v. Rose, supra;  Fairweather v. Fairweather, supra).   Accordingly, the Supreme Court properly granted the defendant's motion pursuant to CPLR 4404(a) to set aside the jury verdict in favor of the plaintiff and for judgment as a matter of law.

The plaintiff's remaining contentions are without merit.