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Supreme Court, Appellate Division, First Department, New York.

SHOU-TSUNG LIN, Plaintiff Respondent, v. Robert M. STRAUB, Defendant Appellant.

Decided: April 05, 2001

NARDELLI, J.P., TOM, ELLERIN, LERNER and RUBIN, JJ. Jeffrey Leavitt, for Plaintiff-Respondent. Anna Stern, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Joan Lobis, J.), entered March 30, 2000, insofar as appealed from, granting plaintiff a divorce on the ground of cruel and inhuman treatment, unanimously affirmed, without costs.

 To obtain a divorce on the ground of cruel and inhuman treatment (Domestic Relations Law § 170[1] ), the plaintiff must show serious misconduct, not mere incompatibility, i.e., a course of conduct by the defendant that is harmful to the plaintiff's physical or mental health 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).   The proof required to make such a showing in part depends on the length of the marriage, because what might be considered substantial misconduct within the context of a short-term marriage might only be “transient discord” in a long-term marriage (id., at 344, 486 N.Y.S.2d 891, 476 N.E.2d 290).   The instant divorce action was commenced in 1999, approximately 11 years after the parties were married in 1988, but, as the trial court emphasized, the period of cohabitation was much shorter, the parties having lived apart continuously for five years prior to 1998, the last three of which coincided with a prior action for divorce that plaintiff instituted and discontinued, and there being evidence of other “hiatuses” even before that.   Thus, the trial court properly lightened the burden of proof required of plaintiff to demonstrate cruel and inhuman treatment.   Under this standard, a pattern of serious misconduct that plaintiff testified caused her to be fearful for her safety and affected her physical health was established by multiple episodes of bizarre behavior and screaming, which were admitted by defendant, and all of which took place within the one-year period that the parties attempted to reconcile and cohabit (see, Ridley v. Ridley, 275 A.D.2d 941, 714 N.Y.S.2d 396).