Reed v. Reed

Dec 27, 2004
Versions:13 A.D.3d 602
786 N.Y.S.2d 358
2004 N.Y. App. Div. LEXIS 15670

In an action for a divorce and ancillary relief, the defendant husband appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Richmond County (Sunshine, J.), dated November 14, 2003, as, after a nonjury trial, and upon *603a decision of the same court dated November 12, 2002, awarded a divorce to the plaintiff wife on the ground of cruel and inhuman treatment, and awarded her custody of the parties’ child.

Ordered that the judgment is affirmed insofar as appealed from, with costs.

The Supreme Court properly awarded the plaintiff a judgment of divorce on the ground of cruel and inhuman treatment. The record supports the Supreme Court’s determination that the defendant’s conduct so endangered the plaintiffs physical and mental well-being as to render it unsafe and improper for her to cohabit with the defendant (see Domestic Relations Law § 170 [1]; Brady v Brady, 64 NY2d 339, 343 [1985]).

Moreover, the Supreme Court properly denied the defendant’s motion pursuant to CPLR 5015 (a) (2) allegedly based on newly-discovered evidence. The evidence, a “Domestic Incident Report” from 1997, could have been discovered earlier with due diligence, and its introduction probably would not have produced a different result (see Jonas v Jonas, 4 AD3d 336 [2004]; Federated Conservationists of Westchester County v County of Westchester, 4 AD3d 326, 327 [2004]; Feldstein v Rounick, 295 AD2d 398, 399-400 [2002]; Orix Credit Alliance v Grace Indus., 274 AD2d 424, 425 [2000]).

The defendant’s remaining contentions are without merit. Florio, J.P, Adams, Cozier and Mastro, JJ., concur.