April 15, 1985
Appeal from the Supreme Court, Westchester County (Dickinson, J., Ferraro, J.).
Judgment dated February 2, 1983 reversed, insofar as appealed from, on the law and the facts, without costs or disbursements, and plaintiff's cause of action for a divorce on the ground of cruel and inhuman treatment dismissed.
Judgment dated April 11, 1983 modified, on the law, by deleting so much thereof as directed that the marital premises be sold and that the proceeds, less expenses of the sale and after satisfaction of the mortgage, be divided equally between the parties. As so modified, judgment affirmed, insofar as appealed from, without costs or disbursements.
The trial court's determination that defendant had engaged in cruel and inhuman treatment of plaintiff is not supported by the record. A plaintiff relying on Domestic Relations Law § 170 (1) must generally show a course of conduct by the defendant spouse which is harmful to the physical or mental health of the plaintiff and makes cohabitation unsafe or improper ( Forcucci v Forcucci, 96 A.D.2d 751; Warguleski v. Warguleski, 79 A.D.2d 1107). A showing of irreconcilable or irremedial differences is insufficient by itself ( Filippi v. Filippi, 53 A.D.2d 658). The existence of cruel and inhuman treatment as a ground for divorce does not permit dissolution of a marriage on a "no-fault" basis or merely because it is "dead" ( see, Brady v. Brady, 64 N.Y.2d 339; Hessen v. Hessen, 33 N.Y.2d 406).
As plaintiff in the instant case has not made the requisite showing, the judgment of divorce dated February 2, 1983 is reversed.
With regard to the judgment dated April 11, 1983, that portion which directs the sale of the marital residence must be deleted. A court is not empowered to direct a sale of property held as tenants by the entirety unless it also alters the legal relationship of the parties ( Brady v. Brady, 101 A.D.2d 797, affd 64 N.Y.2d 339, supra; Kahn v. Kahn, 43 N.Y.2d 203; Portano v Portano, 85 A.D.2d 622). Titone, J.P., Thompson, Bracken and Rubin, JJ., concur.