Hearst v. Hearst , 835 N.Y.S.2d 158 ( 2007 )

Order, Supreme Court, New York County (Laura VisitaciónLewis, J.), entered March 23, 2006, which, after a nonjury trial, dismissed defendant husband’s counterclaim for divorce on the ground of cruel and inhuman treatment, without prejudice to defendant’s claims arising out of the titling of assets in plaintiffs sole name, unanimously affirmed, with costs.

The husband, who suffered from debilitating ailments predating this 1990 marriage, failed to show that the further deterioration of his already fragile physical and mental condition in the years preceding commencement of the action was in any way caused by any misconduct by the wife in titling assets in her sole name (see Hessen v Hessen, 33 NY2d 406, 411-412 [1974]). Similarly, the husband’s testimony that the wife’s financial demands caused him stress shows mere marital discord, not misconduct that so endangered his health as to make it unsafe or improper to cohabit with her (see Brady v Brady, 64 NY2d 339, 343 [1985]; cf. Omahen v Omahen 289 AD2d 890, 891-892 [2001], lv denied 97 NY2d 613 [2002]; Wilson v Wilson, 244 AD2d 646, 647 [1997]). We have considered the husband’s other arguments, including his challenges to the court’s evidentiary rulings, and find them unavailing. Concur—Mazzarelli, J.E, Andrias, Gonzalez, Catterson and Malone, JJ.