Opinion
2013-03-15
Larry J. LOMAGLIO, Plaintiff–Respondent, v. Carmen M. LOMAGLIO, Defendant–Appellant.
Richard S. Levin, Webster, for Defendant–Appellant. The Odorisi Law Firm, East Rochester (Terrence Brown–Steiner of Counsel), for Plaintiff–Respondent.
Richard S. Levin, Webster, for Defendant–Appellant. The Odorisi Law Firm, East Rochester (Terrence Brown–Steiner of Counsel), for Plaintiff–Respondent.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, WHALEN, AND MARTOCHE, JJ.
MEMORANDUM:
In this post-divorce action, defendant wife moved by order to show cause for, inter alia, a determination that plaintiff husband is in contempt for failing to comply with a prior order of this Court (prior order) and for an order directing plaintiff to provide her with continued medical insurance coverage in accordance with the prior order ( see Lo Maglio v. Lo Maglio, 273 A.D.2d 823, 709 N.Y.S.2d 762,appeal dismissed95 N.Y.2d 926, 721 N.Y.S.2d 602, 744 N.E.2d 137). Plaintiff cross-moved for an order terminating his obligation to pay for defendant's medical insurance pursuant to Domestic Relations Law § 236(B)(8)(a) and awarding him attorney's fees. Defendant contends on appeal that Supreme Court erred in denying her motion and in granting that part of plaintiff's cross motion seeking to terminate his obligation to provide defendant with medical insurance coverage.
We agree with defendant that the court erred in terminating plaintiff's obligation to provide her with medical insurance coverage inasmuch as our prior order requires plaintiff to provide her with that coverage. As a general rule, the doctrine of res judicata bars relitigation of previously adjudicated disputes “even where further investigation of the law or facts indicates that the controversy has been erroneously decided, whether due to oversight by the parties or error by the courts” (Matter of Reilly v. Reid, 45 N.Y.2d 24, 28, 407 N.Y.S.2d 645, 379 N.E.2d 172;see Matter of Allstate Ins. Co. v. Williams, 29 A.D.3d 688, 690, 816 N.Y.S.2d 497). As relevant here, “a final judgment of divorce settles the parties' rights pertaining not only to those issues that were actually litigated, but also to those that could have been litigated” ( Xiao Yang Chen v. Fischer, 6 N.Y.3d 94, 100, 810 N.Y.S.2d 96, 843 N.E.2d 723;see Rainbow v. Swisher, 72 N.Y.2d 106, 110, 531 N.Y.S.2d 775, 527 N.E.2d 258;Cudar v. Cudar, 98 A.D.3d 27, 31, 946 N.Y.S.2d 630;see generally Boronow v. Boronow, 71 N.Y.2d 284, 286, 290–291, 525 N.Y.S.2d 179, 519 N.E.2d 1375). “[A]bsent unusual circumstances or explicit statutory authorization, the provisions of [such a] judgment are final and binding on the parties, and may be modified only upon direct challenge” ( Rainbow, 72 N.Y.2d at 110, 531 N.Y.S.2d 775, 527 N.E.2d 258). Here, plaintiff did not take an appeal from our prior order, seek reargument of that order, or make a proper application to modify it. He is therefore foreclosed from collaterally attacking it in the context of this action ( see Jeannotte v. Jeannotte, 235 A.D.2d 711, 714, 651 N.Y.S.2d 757;Lippman v. Lippman, 204 A.D.2d 1057, 1057–1058, 612 N.Y.S.2d 532;see generally Cohen v. Kinzler, 222 A.D.2d 393, 394, 635 N.Y.S.2d 45,lv. denied88 N.Y.2d 802, 645 N.Y.S.2d 445, 668 N.E.2d 416).
We therefore reverse the order insofar as appealed from, deny that part of plaintiff's cross motion seeking an order terminating his obligation to provide defendant with the same level of medical insurance coverage that he provided during the marriage, grant that part of defendant's motion seeking an order directing plaintiff to provide defendant with that medical insurance coverage, and remit the matter to Supreme Court for further proceedings on the remaining relief requested in defendant's motion.
It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, that part of plaintiff's cross motion seeking an order terminating his obligation to provide defendant with the same level of medical insurance coverage that he provided during the marriage is denied, that part of defendant's motion seeking an order directing plaintiff to provide defendant with that medical insurance coverage is granted, and the matter is remitted to Supreme Court, Monroe County, for further proceedings.