Stroke v. Stroke

—Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: Supreme Court erred in denying defendant’s motion seeking dismissal of the complaint for failure to state a cause of action for divorce on the ground of cruel and inhuman treatment (see, CPLR 3211 [a] [7]; Domestic Relations Law § 170 [1]). “Accepting as true the factual allegations of the complaint * * * there is no reasonable view of the facts which supports such a cause of action” (Breen v Breen, 272 AD2d 425 , 426; cf., Vestal v Vestal, 273 AD2d 461 , 462). A plaintiff seeking a divorce on the ground of cruel and inhuman treatment “must show serious misconduct, and not mere incompátibility” (Brady v Brady, 64 NY2d 339 , 343), particularly where, as here, a marriage of long duration is involved (see, Brady v Brady, supra, at 344-345 ; Van Vlack v Van Vlack, 233 AD2d 895 ). Although allegations of physical violence are not necessary and misconduct consisting of verbal and mental abuse may suffice (see, Vaiana v Vaiana, 272 AD2d 916 , 917), the conduct alleged herein does not constitute the requisite “calculated cruelty” that would render cohabitation unsafe or improper (Feeney v Feeney, 241 AD2d 510 ). “The record establishes, at best, ‘strained, unpleasant relations and incompatibility’, which is not sufficient to support a finding of cruel and inhuman treatment in a long-term marriage” (Wikiera v Wikiera, 233 AD2d 896 ). (Appeal from Order of Supreme Court, Wyoming County, Notaro, J. — Dismiss Pleading.) Present— Pigott, Jr., P. J., Wisner, Scudder, Kehoe and Burns, JJ.