Mikoll, J. (dissenting). I respectfully dissent. Where a marriage is of long duration, the party seeking the divorce will be held to a high degree of proof (Silvern v Silvera, 147 AD2d *955473, 474). What might be considered substantial misconduct in the context of a marriage of short duration might only be "transient discord” in that of a long-term marriage (see, Thom v Thom, 162 AD2d 811, 812). Proof of irreconcilable or irremedial differences or proof that the marriage is "dead” is insufficient to establish cruel and inhuman treatment (Niles v Niles, 126 AD2d 874).
In my view, two arm twistings and threats uttered on two occasions (only one of which occurred in the last five years) in the course of the 21-year-old marriage do not establish a general course of abusive conduct harmful to the physical and mental health of plaintiff making cohabitation unsafe and improper. Plaintiff’s remaining allegations as to defendant’s absences, name calling, lack of communication and other complaints are vague and insubstantial. Plaintiff’s testimony of treatment by a therapist, in the absence of the testimony of the professional, also lends no support to her allegation that the treatment was necessitated by her marital experiences, nor does it support her contention that it is unsafe and improper for her to cohabit with defendant.
The comments of Supreme Court are telling as to the quality of proof offered at trial. The court indicated that it would be in the best interests of the parties to terminate their relationship because they were living apart, each with a paramour. The bewilderment of the court that defendant chose to contest the divorce suggests that what has emerged from the testimony is the sad remains of a "dead” marriage rather than proof of the elements of cruel and inhuman treatment. Consequently, I conclude that plaintiff has failed to establish cruel and inhuman treatment and reverse the judgment granting plaintiff a divorce.
Ordered that the judgment is modified, on the law, with costs to plaintiff, by modifying the equitable distribution award to credit defendant with $87.50 for one half of the appraisal costs which plaintiff agreed to pay, and, as so modified, affirmed.