Wenz v. Wenz

¶1In a!n action for divorce, plaintiff appeals from an order of the Supreme Court, Rockland County (Leggett, J.), dated September 11, 1981, which granted defendant’s motion to dismiss the complaint at the close of the plaintiff’s case for plaintiff’s failure to prove a prima facie case. Order reversed, on the law, motion denied, and new trial granted, with costs to abide the event. By dismissing the complaint for failure to prove a prima facie case, the trial court concluded that, as a matter of law, the evidence adduced on plaintiff’s case did not constitute sufficient proof of cruel and inhuman treatment. Based on the record before us, we cannot say that, prima facie, the evidence was insufficient to establish cruel and inhuman treatment. Damiani, J. P., Lazer, Mangano and Gibbons, JJ., concur.