Donley v. Donley , 649 N.Y.S.2d 750 ( 1996 )

Order unanimously affirmed without costs. Memorandum: We reject the contention of plaintiff that Supreme Court erred in granting defendant’s motion, made at the close of plaintiffs proof, to dismiss the complaint in this action seeking a divorce on the ground of cruel and inhuman treatment. To be entitled to a judgment of divorce on that ground, "plaintiff [is] required to establish serious misconduct on the part of defendant such that [her] physical or mental well being was endangered and continued cohabitation with defendant was unsafe or improper” (Urtis v Urtis, 181 AD2d 1001, 1002; see, Domestic Relations Law § 170 [1]; Brady v Brady, 64 NY2d 339, 343). Moreover, because of the long duration of the parties’ marriage, 18 years, a "high degree of proof’ is required to establish cruel and inhuman treatment (Walczak v Walczak, 206 AD2d 900, 901; see, Brady v Brady, supra, at 344; Wikiera v Wikiera, 233 AD2d 896 [decided herewith]).

Here, plaintiffs proof established, at best, an acrimonious, unhappy and strained marital relationship, which is insufficient to meet the high degree of proof required in a long-term marriage to establish cruel and inhuman treatment (see, Brady v Brady, supra, at 344-346; Wikiera v Wikiera, supra; Gulisano v Gulisano, 214 AD2d 999; Walczak v Walczak, supra, at 901; Marciano v Marciano, 161 AD2d 1163, 1164, lv denied 76 NY2d 707). No evidence was introduced of any physical violence between the parties or any vulgar or obscene language by defendant (see, Gulisano v Gulisano, supra; Walczak v Walczak, supra). Additionally, plaintiff presented no medical proof to establish that defendant’s conduct adversely affected her physical or mental health (see, Doyle v Doyle, 214 AD2d 918, 919, lv denied 87 NY2d 803; Walczak v Walczak, supra). Although the absence of expert medical testimony is not necessarily fatal to an action for divorce based upon cruel and inhuman treatment (see, Brooks v Brooks, 191 AD2d 1042, 1043), the failure of plaintiff to submit any medical proof may be considered in determining the sufficiency of her proof (see, Doyle v Doyle, supra, at 919; Walczak v Walczak, supra). (Appeal from Order of Supreme Court, Livingston County, Cicoria, J.—Divorce.) Present—Green, J. P., Pine, Callahan, Doerr and Davis, JJ.