Fladell v. Fladell

—In an action for a divorce and ancillary relief, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Kohn, J.), entered October 19, 1998, which, after a nonjury trial, dismissed the complaint.

Ordered that the judgment is reversed, on the law and the facts, with costs, the plaintiff is granted a divorce on the ground of cruel and inhuman treatment, and the matter is remitted to the Supreme Court, Nassau County, for a hearing on the remaining issues, including equitable distribution, custody, and child support.

Pursuant to Domestic Relations Law § 170 (1), a divorce may be granted based upon a showing that the mental well-being of the complaining spouse is endangered by conduct on the part of the defendant spouse which renders cohabitation improper, though not necessarily unsafe (see, Hessen v Hessen, 33 NY2d 406, 410; Meltzer v Meltzer, 255 AD2d 497). Considering all of the circumstances here, including but not limited to evidence that the defendant engaged in an open adulterous affair, the plaintiff established a prima facie case under that standard. The judgment must therefore be reversed and the matter remitted for resolution of the remaining issues. Bracken, J. P., McGinity, Luciano and Feuerstein, JJ., concur.