Bartkowski v. Bartkowski

Amended order unanimously affirmed without costs. Memorandum: Plaintiff commenced this action seeking a divorce on the ground of cruel and inhuman treatment. Defendant appeals from an amended order denying his motion for summary judgment dismissing the complaint and granting plaintiff’s request for a hearing on the issue of custody. Supreme Court properly denied defendant’s motion. It cannot be said as a matter of law that defendant’s alleged misconduct is merely trivial or that plaintiff’s allegations establish “mere incompatibility” or “transient discord” between the parties (Hessen v Hessen, 33 NY2d 406, 410-411; see, Brady v Brady, 64 NY2d 339, 343-344). Based on the record before us,

*943we conclude that it would be premature to grant summary judgment to defendant dismissing the complaint and that “plaintiff is entitled to a trial on her action for a divorce on the ground of cruel and inhuman treatment” (Brooks v Brooks, 191 AD2d 1042, 1043).

We have considered defendant’s remaining contention and conclude that it is without merit. (Appeal from Amended Order of Supreme Court, Erie County, Makowski, J. — Matrimonial.) Present — Pigott, Jr., P. J., Pine, Hurlbutt, Scudder and Kehoe, JJ.