April 3, 2007 Page 1.
SHAGOURY v SHAGOURY
Supreme Court of the State of New York
Appellate Division: Second Judicial Department
D14539
C/hu
AD3d Argued - February 20, 2007
STEPHEN G. CRANE, J.P.
GLORIA GOLDSTEIN
STEVEN W. FISHER
ROBERT A. LIFSON, JJ.
2005-07041 DECISION & ORDER
(Index No. 18409/02)
In an action for a divorce and ancillary relief, the defendant husband appeals from a judgment of the Supreme Court, Queens County (Fitzmaurice, J.), dated May 24, 2005, which, after a nonjury trial, inter alia, granted the plaintiff wife a divorce on the ground of cruel and inhuman treatment. ORDERED that the judgment is reversed, on the law and in the exercise of discretion, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for a new trial, before a different Justice. The plaintiff wife commenced this action seeking, inter alia, a divorce on the ground of cruel and inhuman treatment. The husband counterclaimed for a divorce on the same ground, but based, in effect, on allegations of abandonment and adultery. Contrary to the husband’s contention, the wife presented evidence which, if believed, would support the Supreme Court’s finding of cruel and inhuman treatment (see Hessen v Hessen, 33 NY2d 406, 411; Meltzer v Meltzer, 255 AD2d 497, 497-498). Nevertheless, under the unusual circumstances presented, a new trial is required because
April 3, 2007 Page 2.
SHAGOURY v SHAGOURY
the trial court impermissibly and repeatedly precluded the husband from eliciting relevant testimony in his defense, as well as in support of the factual allegations contained in his counterclaim, and thereby deprived him of a fair trial (see Arbital v Allstate Ins. Co., 282 AD2d 560, 561; cf. Habib vHabib, 278 AD2d 277, 278). In light of our determination, we do not reach the defendant’s remaining contentions.
CRANE, J.P., GOLDSTEIN, FISHER and LIFSON, JJ., concur.
ENTER:
James Edward Pelzer
Clerk of the Court