MITRY v. VEZZA (1998)

In an action for a divorce and ancillary relief, the defendant appeals from a judgment of the Supreme Court, Westchester County (Nicolai, J.), dated November 10, 1997, which is in favor of the plaintiff awarding him a divorce on the ground of cruel and inhuman treatment.   The defendant's notice of appeal from the decision dated October 14, 1997, is deemed a premature notice of appeal from the judgment (see, CPLR 5520[a] ).

ORDERED that the judgment is affirmed, with costs.

 “The determination of the trial court as a fact finder on the issue of cruel and inhuman treatment will not be lightly disturbed on appeal” (Soto v. Soto, 216 A.D.2d 455, 456, 628 N.Y.S.2d 391;  see also, Kalinich v. Kalinich, 205 A.D.2d 736, 614 N.Y.S.2d 907).   Giving due deference to the trial court's assessment of the credibility of the witnesses, it properly found that the plaintiff was entitled to a divorce on the ground of cruel and inhuman treatment (see, Domestic Relations Law § 170[1] ), as he demonstrated that the defendant's conduct “so endanger[ed] the physical or mental well being of the plaintiff as render[ed] it unsafe or improper for the plaintiff to cohabit with the defendant” (Domestic Relations Law § 170[1];  see, Soto v. Soto, supra;  Gray v. Gray, 245 A.D.2d 584, 664 N.Y.S.2d 878;  Wilbourne v. Wilbourne, 173 A.D.2d 289, 569 N.Y.S.2d 680).

MEMORANDUM BY THE COURT.