Krishnan v. Krishnan

Judgment of Supreme Court, New York County (Elliott Wilk, J.), entered May 22, 1989, granting plaintiff a divorce upon the ground of cruel and inhuman treatment, unanimously affirmed, without costs. The acts of physical violence testified to by plaintiff, which included slapping, choking, and beating her with a shoe, were not trivial, but were sufficient to constitute a pattern of grievous misconduct which presented an actual threat to plaintiffs health and safety. (See, Lind v Lind, 89 AD2d 518, affd 58 NY2d 965.) Defendant’s claim of provocation, raised for the first time on appeal, is unsupported by the testimony adduced at trial. Nor did plaintiffs failure to introduce into evidence police reports or to call witnesses to corroborate her testimony require dismissal of the complaint. The witnesses to the beatings in this case, all members of defendant’s immediate family, were not within plaintiffs control and could, moreover, be deemed hostile to plaintiffs cause. Accordingly, no negative inference can arise as a result of plaintiffs failure to call these witnesses (cf., Averett v Averett, 189 App Div 250, affd 232 NY 519; but see, Borg v Borg, 107 AD2d 777, lv denied 65 NY2d 606). We have considered defendant’s remaining arguments and find them to be without merit. Concur—Ross, J. P., Rosenberger, Asch and Smith, JJ.