Wilson v. Wilson

• Decision Date: 06 November 1997
• Citation: 244 A.D.2d 646,663 N.Y.S.2d 710
• Parties: , 1997 N.Y. Slip Op. 9178 Carla A. WILSON, Appellant, v. David P. WILSON, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 710

663 N.Y.S.2d 710

244 A.D.2d 646, 1997 N.Y. Slip Op. 9178

Carla A. WILSON, Appellant, v. David P. WILSON, Respondent.

Supreme Court, Appellate Division Third Department.

Nov. 6, 1997.

Chernin & Gold (Bruno Colapietro, of counsel), Binghamton, for appellant.

Sukloff & Schanz (Donald Sukloff, of counsel), Binghamton, for respondent.

Before MIKOLL, J.P., and CREW, CASEY, YESAWICH and SPAIN, JJ.

MIKOLL, Justice Presiding.

Appeal from an order of the Supreme Court (Rose, J.), entered September 17, 1996 in Broome County, which granted defendant's cross motion to dismiss the complaint for failure to state a cause of action.

The parties to this action were married in 1966 and have two children. After 30 years of married life, plaintiff commenced this action for divorce on the ground of defendant's cruel and inhuman treatment of her. Following joinder of issue, plaintiff moved for an order granting her temporary maintenance and defendant cross-moved for an order dismissing the complaint for failure to state a cause of action. Supreme Court entered an order on September 12, 1996 granting plaintiff temporary maintenance. By separate order entered on September 17, 1996, Supreme Court granted defendant's cross motion dismissing the complaint for failure to state a cause of action. It is from the latter order that plaintiff now appeals.

Keeping in mind that resolution of defendant's cross motion depends upon whether the complaint states a cause of action rather than upon whether one can be proved, and liberally construing the allegations in plaintiff's favor (see, Frederick v. Frederick, 92 A.D.2d 1058, 461 N.Y.S.2d 528), we nevertheless agree with Supreme Court that the complaint fails to state a cause of action. To maintain an action for divorce on the ground of cruel and inhuman treatment, the complaint must allege a pattern of conduct by the defendant which "so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant" (Domestic Relations Law § 170[1]; see, Brady v. Brady, 64 N.Y.2d 339, 343, 486 N.Y.S.2d 891, 476 N.E.2d 290; Hessen v. Hessen, 33 N.Y.2d 406, 410, 353 N.Y.S.2d 421, 308 N.E.2d 891). "Cruelty implies wantonness or the intent to inflict suffering or conduct of such character as to seriously affect or impair the health of a spouse as to render cohabitation unsafe or improper. A plaintiff is, therefore, required to show a pattern of actual physical violence or other conduct which seriously affected the plaintiff's health, making further cohabitation unsafe" (Scheinkman, Practice Commentaries, McKinney's Cons.Laws of...