| Ehrman v Ehrman |
| 2009 NY Slip Op 08778 [67 AD3d 955] |
| November 24, 2009 |
| Appellate Division, Second Department |
| Debbi Ehrman, Appellant, v Robert Ehrman,Respondent. |
—[*1] Gassman, Baiamonte, Betts & Tannenbaum, P.C., Garden City, N.Y. (Stephen Gassman andJoshua B. Gruner of counsel), for respondent.
In an action for a divorce and ancillary relief, the plaintiff wife appeals from an order of theSupreme Court, Nassau County (Sher, J.), dated May 23, 2008, which granted the defendanthusband's motion, in effect, pursuant to CPLR 4404 (b) to set aside so much of a decision of thesame court dated January 8, 2008, as, after a nonjury trial, awarded her a divorce based on crueland inhuman treatment, and, upon setting aside that decision, directed dismissal of that cause ofaction.
Ordered that the order is affirmed, with costs.
Under the circumstances herein, the husband's motion, improperly denominated a motion forleave to reargue, was, in effect, a motion to set aside, in part, the Supreme Court's trial decisionpursuant to CPLR 4404 (b) (see Taronev Tarone, 59 AD3d 434 [2009]). The Supreme Court did not improvidently exercise itsdiscretion in effectively extending the time for that motion, since the circumstancesdemonstrated good cause for the brief delay (see CPLR 4405, 2004; Johnson vSuffolk County Police Dept., 245 AD2d 340 [1997]; cf. Brzozowy v ELRAC, Inc., 39 AD3d 451, 453 [2007]).
The Supreme Court properly granted the defendant's post-trial motion upon determining thatthe plaintiff failed to establish grounds for divorce based on cruel and inhuman treatment. Toobtain a divorce on the ground of cruel and inhuman treatment, a plaintiff must show conduct ofthe defendant spouse which "so endangers the physical or mental well being of the plaintiff asrenders it unsafe or improper for the plaintiff to cohabit with the defendant" (Domestic RelationsLaw § 170 [1]). When the marriage is one of long duration, as here, a high degree of proofof cruel and inhuman treatment is required (see Biegeleisen v Biegeleisen, 253 AD2d474 [1998]; Palin v Palin, 213 AD2d 707 [1995]). Here, the Supreme Court did not err infinding that the plaintiff failed to establish facts which would satisfy the high degree of proof ofcruel and inhuman treatment required when the marriage is one of long duration (see Gulati v Gulati, 50 AD3d1095, 1096 [2008]; Justin v Justin, 47 AD3d 615 [2008]; Cauthers v Cauthers, 32 AD3d880 [2006]; Archibald v Archibald,15 AD3d 431 [2005]; Davey v Davey, 293 AD2d 444, 445 [2002]). It is notsufficient that the plaintiff could show facts which would tend to demonstrate that, in their20-year marriage, there was "mere incompatibility" (Brady v Brady, 64 [*2]NY2d 339, 343 [1985]); there were "irreconcilable or irremedialdifferences" (Tsakis v Tsakis, 110 AD2d 763, 764 [1985]; see Gulati v Gulati, 50 AD3d1095 [2008]); the marriage was "dead" (Brady v Brady, 64 NY2d at 346); or thedefendant engaged in "[r]eprehensible and highly offensive behavior" (Gross v Gross, 40 AD3d 448, 449[2007]), in the absence of proof that such behavior rendered it unsafe or improper for her tocohabit with the defendant (see Domestic Relations Law § 170 [1]; Cauthers v Cauthers, 32 AD3d880 [2006]).
The plaintiff's remaining contention is not properly before this Court, since it challenges aruling that was not embodied in the order appealed from (see Sullivan v Our Lady of Consolation Geriatric Care Ctr., 60 AD3d663 [2009]; Kiersh v Kiersh, 222 AD2d 411 [1995]). Mastro, J.P., Miller, Angiolilloand Austin, JJ., concur.