Pajak v. Pajak

Dillon, P. J., and Schnepp, J. (dissenting).

We reject the majority’s construction of subdivision (1) of section 170 of the Domestic Relations Law. To limit “the statutory test” to “the effect of the conduct upon plaintiff” is to permit the grant of a divorce for reasons unrelated to acts of cruelty or inhumanity. By its language, the statute establishes not one test, but two, and it is only the second which is concerned with the impact upon plaintiff of defendant’s conduct. What is first required is a showing that defendant’s conduct was “cruel and inhuman”. This is “strong terminology” and requires a showing of “serious misconduct” (Hessen v Hessen, 33 NY2d 406). One wholly innocent of wrongdoing or impropriety is not to be held culpable under the statute. This court said as much in Tobin v Tobin (25 AD2d 948) and we would continue to hold that acts of an irrational or insane person will not provide a predicate for a finding of cruel and inhuman treatment. The parties were married in 1964 and it was not until the summer of 1978, according to plaintiff, that defendant began to act strangely. Her condition deteriorated and she was hospitalized for treatment of mental illness in 1979 and again in 1980. It would serve no purpose to recount here the acts and delusions of defendant about which plaintiff complains. As in Tobin, we would conclude on this record that defendant’s conduct was so bizarre and unusual that her acts were clearly those of an irrational person. Indeed, no claim is made to the contrary. Accordingly, we would reverse the judgment and dismiss the complaint. (Appeal from judgment of Erie Supreme Court, Dugan, J. — divorce.) Present — Dillon, P. J., Hancock, Jr., Doerr, Denman and Schnepp, JJ.