| Bluth v Bluth |
| 2007 NY Slip Op 09353 [45 AD3d 796] |
| November 27, 2007 |
| Appellate Division, Second Department |
| Ellen Bluth, Respondent, v Harvey Bluth,Appellant. |
—[*1] Seidemann & Mermelstein, Brooklyn, N.Y. (David J. Seidemann of counsel), forrespondent.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief,from so much of a judgment of the Supreme Court, Queens County (Strauss, J.), entered October27, 2006, as, after a nonjury trial, granted the plaintiff a divorce on the ground of cruel andinhuman treatment.
Ordered that the judgment is affirmed insofar as appealed from, with costs.
In order to obtain a divorce on the ground of cruel and inhuman treatment, the plaintiff mustprove by a preponderance of the credible evidence that the defendant's conduct "so endangers thephysical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff tocohabit with the defendant" (Domestic Relations Law § 170 [1]; Brady v Brady, 64NY2d 339, 343 [1985]; Collins v Collins, 284 AD2d 743, 745 [2001]). The plaintiffmust show "serious misconduct" on the defendant's part, rather than the parties' "mereincompatibility" (Hessen v Hessen, 33 NY2d 406, 410 [1974]). When a marriage is oflong duration, the plaintiff has the burden of establishing cruel and inhuman treatment by a highdegree of proof (see Archibald vArchibald, 15 AD3d 431, 432 [2005]; Biegeleisen v Biegeleisen, 253 AD2d474, 475 [1998]). A trial court has broad discretion to determine the issue of cruel and inhumantreatment, and its determination will not be lightly overturned on appeal (see Curatola v Curatola, 43 AD3d974 [2007]; Dunne v Dunne, 172 AD2d 482, 483 [1991]).
Contrary to the defendant's contention, the plaintiff sustained her burden of [*2]establishing that the defendant engaged in a course of conductwhich was harmful to her physical and mental well being and made it unsafe or improper for herto cohabit with him. Accordingly, the Supreme Court properly granted her a divorce on theground of cruel and inhuman treatment (see Reed v Reed, 13 AD3d 602, 603 [2004]; Levine v Levine, 2 AD3d 498, 500[2003]; Bulger v Bulger, 88 AD2d 895, 896 [1982]; cf. Cauthers v Cauthers, 32 AD3d 880, 881 [2006]). Miller, J.P.,Ritter, Skelos and Covello, JJ., concur.