Husband testified that Wife engaged in numerous extramarital affairs. He testified that he discovered numerous e-mail exchanges between the Wife and at least two separate men, which caused him to suffer extreme emotional pain, leading to medical and psychological problems, requiring medical attention and medications. He testified that he discovered the details of her affairs when he was cleaning Wife's computer in November of 2005. He further testified that Wife stayed out of the marital residence many nights and he found many love letters and cards from her lovers in the basement. He testified that Wife's behavior resulted in his feelings of rejection, and humiliation, and such feeling manifested themselves as anxiety, high blood pressure and lack of sleep, for which he was prescribed medication.

Husband testified that the parties have lived separate and apart since in or about April 2007, when Wife removed most of her belongings from the marital residence and moved, without the consent of Husband, to Richmond, Virginia, where she has been operating a bath and shower business. He further testified that prior to her permanent relocation to Virginia, Wife voluntarily lived in the basement of the marital residence starting since in or about 1991. He testified that Wife refused to return to the marital bedroom, despite his repeated requests. Testimony was given that Wife took her personal belongings with her during trips back and forth to New York, but that in October of 2008, she took the balance of her personal property in a large van, with the help of the parties' daughter. She took four pieces of furniture, clothing, shoes, and toiletries.

Husband testified that although Wife resided in Virginia on a full-time basis, starting in or about April of 2007, Wife returned to the marital residence approximately ten times, during which times she stayed in the parties' daughter's bedroom, and had no interaction with Husband, other than negative interaction. She did not engage in sexual relations with Husband. He testified that the duration of her visits were anywhere from overnight to just hours. He testified that she did not resume her role as wife or partner, but rather she used the marital residence as hotel. Wife testified that she returned to new York approximately forty times during this period, but admitted that she occasionally stayed in hotels.

Husband testified that the physical abandonment of the Husband by Wife commenced in or about 1991, when Wife moved out of the marital bedroom and into the basement and refused to return and resume cohabitation with Husband. He also testified that he did not recall when the parties had last had sexual relations but that it was at least five years prior to the commencement of the instant action.

Husband testified that Wife was extremely physically abusive, and that in or about August of 2005, Wife attempted to attack him with a Japanese sword. Husband testified that Wife could have killed him if not for the parties' daughter's intervention. He testified that the sharp edge of the sword came within a few inches of his chest. He testified that Wife came to the marital residence around 1:00 p.m., and when Husband questioned her as to where she had been, [*3]Wife refused to answer, and stated that she did not have to tell him. He testified that Wife began acting "crazy" and began yelling and screaming at him. She then came after him waving her hands and pounding on his chest, striking him repeatedly. He testified that at the start of the confrontation, the parties were in the kitchen, but that upon escalation of the incident, he ran to the master bedroom, and fearing for his safety, he locked himself in the bedroom for his protection. He testified that Wife began pounding on the door and kicking it with her feet, while screaming and insisting that he open the door. Husband testified that he heard the parties' daughter come out of her bedroom, and that she was pleading for Wife to stop. Fearing that Wife would hurt their daughter, he came out of the bedroom and walked towards the kitchen where Wife was holding the large Japanese sword, while their daughter was trying to block Wife and stop her from moving forward. Husband testified that he observed Wife pushing their daughter back in an attempt to reach the bedroom, but when she saw Husband in the kitchen, she began to charge at him and waive the sword through the sides of their daughter's body. He testified that Wife became frantic in her attempts to reach him and almost did hit him on the head and parts of his chest. He testified that he slowly retreated back in the bedroom and locked himself in for the night, fearing that Wife would come back and hurt him in the middle of the night. He did not call the police at any point in this incident, nor did he testify as to any actual injuries inflicted by Wife upon him during the course of the incident.

Husband testified that in or about November of 2005, Wife requested that he, a computer expert, clean her computer as she believed it was too slow due to a virus.He testified that the e-mail file look suspiciously large and he looked inside and found volumes of e-mail exchanges between the Wife and various male lovers. He downloaded these e-mails from Wife's computer. The explicit e-mails were entered into evidence and the content of one such e-mail from K.O. was read into the record. The content of the e-mail was extremely sexually explicit, describing a sexual encounter, although it is unclear if it was description of an actual encounter or simply an explicit story. Husband testified that he was devastated and that he couldn't sleep, he lost weight, and he was unable to concentrate for a long period of time. He began to search the basement where Wife was living and testified that he found letters and cards from lovers such as R.M.

Husband testified that in or about December of 2006, he found, among Wife's belongings in the basement, the confirmation page for hotel reservations for a one-night stay from December 22 to December 23, at the Hilton Rye Town Hotel in Rybrook, New York. The reservation was under the name of M.H. and the charge was made on his American Express credit card. Husband testified that Wife was away that Friday, and did not return from work at all, and did not answer her cellular telephone all weekend, although Husband called every hour. Upon her return, Husband showed Wife the hotel reservations printout and asked her where she had been. Wife started screaming and yelling that she could do what she wants. Husband testified that Wife did not deny an affair and refused to respond or explain who Mr. M.H. was.

Husband testified that the Defendant had violent outbursts every "couple of weeks" within the five years proceeding the commencement of this divorce action. He particularly recalled at least one outburst which occurred in 2006, and testified that while sitting on his bed with his laptop, Wife appeared at his bedroom door, and began to grab books and throw them at him. He testified that some books hit him and some missed. He testified that she then picked up a bottle and threw it at him, which missed him. He also testified to another violent outburst in or [*4]about 2006, where Wife kicked a piece of furniture with such force that she broke it to pieces. He did not call the police during or after either incident and there was no proof presented as to any injuries resulting from the incident.

Husband testified that Wife did not spend Jewish or civil holidays, birthdays, Mother's Day or Father's Day with him or their children for at least two years prior to the commencement of the action.

Husband testified that he began to suffer from a sleeping disorder as he feared sneak attacks from Wife in the middle of the night. He testified that he was forced to lock his bedroom door each night, and in the morning he left wood markers by the door so he could have advance notice upon his return to the marital residence that Wife was at the house. Husband did not present any evidence of the physical ailments allegedly resulting from the marital strife. He called no experts or treating physicians.

Husband testified that in or about November 2006, while still employed at Alexander Holding, Wife revealed to him that she planned to open a bath and shower renovation business, the same type of business conducted by her then current employer. He further testified that she only revealed that the business would be located in Virginia, because it is a good market for such a business. He testified that he attempted to persuade Wife to stay in New York with him and work on their marriage. Wife quit her job in or about March of 2007, moved to Virginia in or about April of 2007, against Husband's objections and she refused to reveal to him where she resides and with whom.

Husband further testified that Wife refused to file 2007 tax returns jointly with Husband, although they would have enjoyed a $50,000 refund, which he claims could have been used to pay marital debts, including debts incurred by Wife to start her business. Instead, he claims that she insisted that her business losses are a benefit solely for her to enjoy in future years' tax filings.

He testified that he pleaded with her not to move to Virginia, and to go with him to marriage counseling to work on their marriage. She refused and stated that she did not believe in counseling, that she had already secured a location for her business and rented an apartment for herself.

On May 23, 2007, Wife returned to New York, after not having appeared in New York for weeks, for a mutual friend's birthday party, which took place in a restaurant. Wife did not reveal to Husband that she intended to attend the party. He testified that she went straight to the restaurant, without stopping at the marital residence prior thereto. She did not greet or sit anywhere near him, and did not engage in conversation with him. She left the party at approximately 10:00 p.m., but did not return to the marital residence until 7:30 a.m. the next morning refusing to explain her whereabouts.

Husband testified that although Wife moved to Virginia in or about April of 2007, she moved her remaining personal property, including furniture, in or about October of 2008. She used a large van with Virginia license plates and loaded the remaining personal belongings from the basements, and boxes left in their daughter's room. She removed four wooden cabinets and two dressers containing her clothing, and all the clothing hung up on a rack in the basement. After she moved to Virginia in April of 2007, Husband testified that Wife did not keep any personal belongings in the marital residence for daily use. She did not keep a toothbrush, [*5]toiletries, make-up, or sleep wear. She always brought such items with her when she came up to New York.

Husband testified that as a result of Wife's conduct, he began to suffer from anxiety, inability to sleep, loss of weight (approximately ten pounds), and was seen by Dr. Schwartz, whom he has been seeing for several years. Dr. Schwartz prescribed him Valium, and recommended that he see a psychotherapist, Dr. Weiss, who the Husband has been seeing for several months on a weekly basis. No evidence was presented to support this testimony.

Both children testified on May 18, 2009, and both children corroborated Husband's testimony.

T is twenty-three years old, and is enrolled in a doctoral program at Stony Brook University. She testified that the incident involving the Japanese sword occurred in or about August of 2005. She identified the sword, and testified that it is a large metal sword with approximately three feet of dulled blade, and a sharp point at the end. She provided additional specific details from her own perspective on how her mother held the sword down the side of her body, with her left hand, as she was coming up the stairs from the basement. She testified how desperately she tried to block her mother with her own body to prevent her from moving forward up the stairs, and how her mother kept on pushing her back and eventually reached the top of the stairs by the kitchen area. She testified that when they reached the top of the stairs by the kitchen area she saw her father over her shoulders coming towards the kitchen. She saw the expression on her mother's face change when she saw her father behind her. She described that her mother began to use more force to get past her to get to her father's body, so she continued to block her. She testified that her mother tried to hit Husband with the sword, swinging it from different angles, in an attempt to reach him. She testified that Wife had come within inches of Husband at one point. T confirmed in specific details the potential deadly consequences of this episode as the tip of the blade was extremely sharp and could have injured or even killed the Plaintiff had Defendant succeeded in reaching his body. The parties' daughter was not qualified as an expert at any point during the trial.

On cross-examination T testified that she observed at least forty instances of violence between her mother and father. She further testified that her father never struck back at her mother and that her father did not start any of the forty or more incidents that she remembered.

T corroborated Husband's testimony that Wife had not slept in the marital bedroom for many years, but testified that Wife had not slept in the marital bedroom for approximately 17 or 18 years.

She testified that between May of 2007 and October, 2007, she saw her mother only a few times due to her mother residing in Virginia.

T testified that she visited her mother in her studio apartment in Richmond, Virginia, in or about September, 2007. She described a fully furnished apartment with bedroom furniture with a queen size bed and bedding, a walk-in closet with clothes, a diningroom table and chairs with a decorative centerpiece, a kitchen with a refrigerator filled with food, and a bathroom full of personal items.

T testified that in or about October, 2007 she helped Defendant pack and move her belongings into a "big white van," and that Wife took all her belongings. T testified that Wife [*6]took six boxes of clothing, two bags filled with shoes, furniture, consisting of four wooden chests from the basement. T estimated that the Defendant took approximately 98% of her personal items from the house. T testified that she asked her mother why she needed all her belongings to which Wife replied that she would be living in Virginia to run her business.

T testified that since October, 2007 her mother may have come once a month at the beginning, but that the frequency dwindled. She testified that from May 2007 to the date of trial she saw her mother at the residence approximately six times, or a total of ten nights altogether although T lived there and was at home each weekend. She further testified that from May 2007 to the date of trial she had not celebrated any religious or civil holidays with her mother. She also testified that on the rare occasions that her mother came home, her parents had minimal interaction with each other, and usually they would argue and her mother would leave soon thereafter. She had not spent Mother's Day with her mother in 2007, 2008, or 2009, and that the last interaction she had with her mother on Mother's Day was over the telephone on Mother's Day of 2006.

E is 26 years old. He testified that he left home and began residing in Queens in or about January, 2006. He testified that from January 2006, until November 2008, he visited his father at the marital residence at least fifty times and did not see his mother more than twice. He also testified that he always spent holidays with his father and sister, and sometimes with family friends, but never with his mother during that period.

He testified regarding a incident that occurred in August of 2005, while his father was in Israel and his mother was away the entire night. He testified that he called his mother repeatedly on her cell phone and she did not answer his calls. She came home at approximately 6:00 a.m., and when he asked her where she had been, and why she did not respond to his telephone calls, she flew off the handle and started screaming and yelling at him . She kept screaming that she did not have to explain anything to him, and began throwing things at him. She then tried to push him back up the stairs, all while he was on the telephone with the Husband, whom he contacted on his cell phone in Israel. E was trying to tell his father what was happening while the Defendant was screaming and yelling. Husband heard the entire episode and asked E to leave the house for fear that he would get hurt.

E testified that he had a conversation with his mother about her move to Virginia and that she revealed to him that she obtained a studio apartment in the Richmond area, and that she was going to stay there while she operated her business. She did not give him any indication how long she intended to say there. He testified that he had not spent any birthdays or holidays with his mother since early 2007, and that he did not see her for Mother's Day in 2007, 2008, or 2009.

He further testified that between 2000 and 2007 he witnessed at least 20 incidents of violence on the part of his mother against his father. He did not testify specifically.

Wife denied the allegations of Husband with respect to the incident involving the Japanese sword.

During her testimony, Wife denied living in the basement of the marital residence. She, however, testify that while she was in college, there were occasions when she slept in the basement either because she was studying or because Husband's snoring prevented her from sleeping. However, she further testified that she continued to reside in the marital bedroom even [*7]after she was spending time in Virginia.

Wife testified that she never intended to remove herself from the marital residence, and that it was never her intent to permanently leave New York. She testified that she continues to maintain her New York State driver's license.

Wife testified that she and her Husband continued to engage in sexual relations until the latter part of 2007. She specifically testified that the parties shared the same hotel room, in Binghamton, New York, when they attended their daughter's college graduation. Husband admitted that they did in fact share a hotel room. The wife testified to additional instances of sexual relations, with Husband, for several months after the said graduation.

Wife testified that in early 2007 she was terminated from her employment with a business engaged in bathroom installation and renovations, where she had been earning approximately $90,000.00 a year. In response thereto, she began researching setting up her own company, in the same business she had previously been employed in. As a result of her research and her examination of demographics, she determined that the best location, for her new business, was in the Richmond Virginia area. She testified that she fully discussed her intentions with her family, and that her son even offered advice as to the leasing of space, based on his experience in this area of business. She discussed the situation with Husband, on several occasions, both at home and at several restaurants. She testified that it was her intention to hire a manager and only spend a few days a week in Richmond, but that unfortunately, as a result of a serious downturn in the economy and in the home improvement field, she had to alter her plans and spend more time in Richmond then she had originally anticipated. Nonetheless, she continued to return to the marital residence, on an on-going basis. In further support of her testimony, an e-mail exchange between the parties from June of 2007, entered into evidence. In the e-mails, Wife described what was taking place in her business, how busy her work week was and that she would be returning to Plainview on the following weekend.

During her testimony, Wife produced numerous travel receipts, gasoline receipts and other miscellaneous receipts, to demonstrate her continual travel to and from Richmond, Virginia and Plainview, New York. Said receipts covered the period from May or June, 2007 through 2008 and into 2009. She testified that in addition to her continuous returns to New York, she was present for numerous social and religious events. These included her daughter's college graduation, Passover, a party for a close family friend, Mr. J.V., Mother's Day and other events. She noted that her husband was frequently out of the country, on trips to Israel and Italy.

Also entered into evidence was Wife's New York State driver's license, which, she testified, was the only driver's license that she possessed. Wife's current New York State registration for her 2008 Nissan motor vehicle, the only vehicle she owned, along with her New York State Insurance Identification Card, both showing her address at xxxx, Plainview, New York, 11803, the address of the marital residence, were also marked into evidence. Wife's Voter Registration and unexpired library card, from the Plainview-Old Bethpage Public Library, setting forth her aforementioned residence in Plainview, was also entered into evidence.

Wife further testified that her doctors and dentist were all located in Nassau County.

She also testified that in 2008, after receiving an extension, she filed her 2007 Federal tax return, showing her residence at xxxx, Plainview, New York 11803. She also testified that she never filed a return in the State of Virginia. [*8]

During cross-examination, Wife asserted her Fifth Amendment right against self-incrimination when asked whether she had engaged in extramarital affairs in the past with other men, either prior to the five year statute of limitation period or during the five years immediately prior to the commencement of the action.

To obtain a divorce on the grounds of cruel and inhuman treatment, a plaintiff must show "a course of conduct by the defendant which is harmful to the physical or mental health of the plaintiff such that it makes cohabitation unsafe or improper." DRL §170(1); see also, Gross v. Gross, 40 AD3d 448 (1st Dept. 2004); Cauthers v. Cauthers, 32 AD3d 880 (2nd Dept. 2006). A plaintiff must demonstrate more than incompatibility or that they have irreconcilable differences — serious misconduct must be shown. See, Brady v. Brady, 64 NY2d 339 (1985); Archibald v. Archibald, 15 AD3d 431 (2nd Dept. 2005); Jacob v. Jacob, 8 AD3d 725 (3rd Dept. 2004); Bigeleisen v. Bigeleisen, 253 AD2d 474 (2nd Dept. 1998); Feeney v. Feeney, 241 AD2d 510 (2nd Dept. 1997); Palin v. Palin, 213 AD2d 707 (2nd Dept. 1995).

In determining whether the defendant's conduct justifies the granting of a divorce on the grounds of cruel and inhuman treatment, the conduct complained of must be viewed in the context of the entire marriage including its duration. See, Bradley v. Bradley, 298 AD2d 485 (2nd Dept. 2002).

The duration of the marriage is a significant factor in deciding whether the offending behavior constitutes "serious misconduct". See, Hessen v. Hessen, 33 NY2d 406 (1974); M.M. v. E.M., 248 AD2d 109 (1st Dept. 1998); Rieger v. Rieger, 161 AD2d 227, 228 (1st Dept. 1990). "An appearance of misconduct, which in a matured marriage might fail to justify a finding of substantial misconduct, but only transient discord, may in a newer marriage justify or even compel an inference of substantial misconduct". Hessen, supra at 411; see, Brady v. Brady, supra ; Soto v. Soto, 216 AD2d 455 (2nd Dept. 1995). In a marriage of longer duration, however, a higher degree of proof is required to establish cruel and unhuman treatment. See, Cauthers, supra .Regardless of the length of the marriage, one or more incidents of physical abuse may constitute substantial misconduct. See, Brady v. Brady, supra ; Meltzer v. Meltzer, 255 AD2d 497 (2nd Dept. 1998).

Whether the conduct complained of constitutes cruel and inhuman treatment is a question of fact which will depend upon the circumstances of each case and is to be decided by the finder of fact. See, Soto v. Soto, supra . "The intense variables in the most intricate of all human relationships create levels of complication fundamentally unsuited for legal rules which aim at certainty". Berlin v. Berlin, 64 Misc 2d 352 (NY App. Term, Nassau Cty. 1970). In most instances, as in the case herein, there are no objective witnesses or evidence, and the Court's decision rests largely on its assessment of credibility of the witnesses. See, Nicodemus v. Nicodemus, 45 AD3d 546 (2nd Dept. 2007); Curatola v. Curatola, 43 AD3d 974 (2nd Dept. 2007); Varga v. Varga, 288 AD2d 210 (2nd Dept. 1999); Ferraro v. Ferraro, 257 AD2d 596 (2nd Dept. 1999); French v. French, 262 AD2d 280 (2nd Dept. 1999). [*9]

The court may also grant a divorce on the grounds of cruel and inhuman treatment based upon evidence that a spouse engaged in an open extramarital affair. Fladell v. Fladell, 274 AD2d 413, 711 NYS2d 780 (2nd Dept. 2000). Such conduct if proven by credible evidence, may render cohabitation improper, though not necessarily unsafe. Fladell v. Fladell, supra .

Issues of credibility have arisen in the case at bar as a result of the parties' contradictory testimony relating to the Plaintiff's claim of cruel and inhuman treatment. The Court having carefully considered the testimony given and the evidence presented, finds the Plaintiff's testimony to be more credible than that of the Defendant, with respect to the allegations of cruel and inhuman treatment. Accordingly, where issues of credibility have arisen with respect to the issue of cruel and inhuman treatment, the Court has resolved such issues in favor of the Plaintiff. See, French v. French, supra .

Notwithstanding the determination on credibility, after careful and thoughtful review of the totality of the evidence, including the long duration of the parties' marriage, and failure of the Plaintiff to prove adultery on the part of the Defendant, it is the Court's determination that the credible evidence is insufficient to sustain a cause of action based upon cruel and inhuman treatment. Further, the Court notes that at no time did the husband testify that the alleged cruel and inhuman treatment of him by the wife so endangered his physical or mental well being as to render it unsafe or improper for him to cohabit with his wife as required by DRL §170(1). Plaintiff did not sustain his burden of proof with respect to physical or mental injuries. The testimony was that no one sustained any physical injuries, neither party was seen at a hospital or by any doctor. In fact he never contacted the police nor did he seek protection from the Family Court, and he testified that he continuously pleaded with Wife to return to the marital residence to work on their marriage.

Plaintiff provided no testimony from any physicians nor did he even produce any medical records. Additionally, those allegations of adulterous acts on the part of Defendant made in substantiation of Plaintiff's cause of action for cruel and inhuman treatment were not proven by the testimony or evidence presented.

Accordingly, having failed to establish a prima facie showing of cruel and inhuman treatment by the Defendant, the FIRST Cause of Action contained in Plaintiff's Verified Complaint is dismissed.