        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

142
CA 12-01317
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, WHALEN, AND MARTOCHE, JJ.


LARRY J. LOMAGLIO, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

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.


     Appeal from an order of the Supreme Court, Monroe County (Richard
A. Dollinger, A.J.), entered March 5, 2012. The order, insofar as
appealed from, denied the motion of defendant for an order finding
plaintiff in contempt and directing plaintiff to provide defendant
with medical insurance coverage and granted that part of the cross
motion of plaintiff to terminate his obligation to provide defendant
with medical insurance coverage.

     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 in accordance with the following 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 AD2d 823, appeal dismissed 95 NY2d 926). 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
                                 -2-                           142
                                                         CA 12-01317

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 NY2d 24, 28; see
Matter of Allstate Ins. Co. v Williams, 29 AD3d 688, 690). 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 NY3d 94, 100; see Rainbow v Swisher, 72 NY2d
106, 110; Cudar v Cudar, 98 AD3d 27, 31; see generally Boronow v
Boronow, 71 NY2d 284, 286, 290-291). “[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 NY2d at 110). 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 AD2d 711, 714; Lippman v
Lippman, 204 AD2d 1057, 1057-1058; see generally Cohen v Kinzler, 222
AD2d 393, 394, lv denied 88 NY2d 802).

     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.




Entered:   March 15, 2013                       Frances E. Cafarell
                                                Clerk of the Court
