Opinion
2003-10568.
December 27, 2004.
In an action for a divorce and ancillary relief, the defendant husband appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Richmond County (Sunshine, J.), dated November 14, 2003, as, after a nonjury trial, and upon a decision of the same court dated November 12, 2002, awarded a divorce to the plaintiff wife on the ground of cruel and inhuman treatment, and awarded her custody of the parties' child.
Before: Florio, J.P., Adams, Cozier and Mastro, JJ., concur.
Ordered that the judgment is affirmed insofar as appealed from, with costs.
The Supreme Court properly awarded the plaintiff a judgment of divorce on the ground of cruel and inhuman treatment. The record supports the Supreme Court's determination that the defendant's conduct so endangered the plaintiff's physical and mental well-being as to render it unsafe and improper for her to cohabit with the defendant ( see Domestic Relations Law § 170; Brady v. Brady, 64 NY2d 339, 343).
Moreover, the Supreme Court properly denied the defendant's motion pursuant to CPLR 5015 (a) (2) allegedly based on newly-discovered evidence. The evidence, a "Domestic Incident Report" from 1997, could have been discovered earlier with due diligence, and its introduction probably would not have produced a different result ( see Jonas v. Jonas, 4 AD3d 336; Federated Conservationists of Westchester County v. County of Westchester, 4 AD3d 326, 327; Feldstein v. Rounick, 295 AD2d 398, 399-400; Orix Credit Alliance v. Grace Indus., 274 AD2d 424, 425).
The defendant's remaining contentions are without merit.