Rispoli v. Rispoli

• Decision Date: 08 June 1987
• Citation: Rispoli v. Rispoli, 516 N.Y.S.2d 280, 131 A.D.2d 556 (N.Y. App. Div. 1987)
• Parties: Ralph RISPOLI, Appellant, v. Madeline RISPOLI, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 280

516 N.Y.S.2d 280

131 A.D.2d 556

Ralph RISPOLI, Appellant, v. Madeline RISPOLI, Respondent.

Supreme Court, Appellate Division, Second Department.

June 8, 1987.

Anthony C. Zacharakis, Tappan, for appellant.

Ferraro, Rogers, Dranoff, Greenbaum, Cody, Goldstein & Miller, P.C., Pearl River (Patrick J. Bliss of counsel), for respondent.

Before BRACKEN, J.P., and RUBIN, EIBER and SPATT, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief the defendant husband appeals from a judgment of the Supreme Court, Westchester County (Weiner, J.), dated November 7, 1985, which, after a nonjury trial, inter alia, granted the plaintiff wife a divorce on the ground of cruel and inhuman treatment.

ORDERED that the judgment is affirmed, without costs or disbursements.

The determination of the trial court as fact finder on the issue of cruel and inhuman treatment will not lightly be overturned on appeal (Forcucci v. Forcucci, 96 A.D.2d 751, 465 N.Y.S.2d 320; Davis v. Davis, 83 A.D.2d 547, 441 N.Y.S.2d 26). Since many of the acts of alleged misconduct occurred in private, the finding of cruel and inhuman treatment was based upon the resolution of the parties' conflicting testimony. On this record, we defer to the trial court's determination on this issue of credibility (see, Day v. Day, 112 A.D.2d 972, 492 N.Y.S.2d 783; D'Amato v. D'Amato, 96 A.D.2d 849, 466 N.Y.S.2d 23). We also note that corroboration is not required to establish acts of cruel and inhuman treatment constituting grounds for divorce (Borg v. Borg, 107 A.D.2d 777, 491 N.Y.S.2d 659, lv. denied sub nom. Borg v. Corpas, 65 N.Y.2d 606, 493 N.Y.S.2d 1028, 483 N.E.2d 134; D'Amato v. D'Amato, supra ).

While this action involves a marriage of long duration (see, Brady v. Brady, 64 N.Y.2d 339, 486 N.Y.S.2d 891, 476 N.E.2d 290; Hessen v. Hessen, 33 N.Y.2d 406, 353 N.Y.S.2d 421, 308 N.E.2d 891), a review of the record supports the trial court's findings as to specific acts of substantial misconduct by the husband during the five years preceding the commencement of this action, including three incidents of physical abuse, which demonstrate that relations between the parties had deteriorated to the point where the wife's mental and physical well being were placed in jeopardy by continued cohabitation. Under the circumstances, the trial court properly granted the plaintiff a divorce on the ground of cruel and inhuman treatment (see, Domestic Relations Law § 170[1] ).