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

757
CA 14-02297
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.


LARRY J. LOMAGLIO,
PLAINTIFF-RESPONDENT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

CARMEN M. LOMAGLIO,
DEFENDANT-APPELLANT-RESPONDENT.


RICHARD S. LEVIN, WEBSTER, FOR DEFENDANT-APPELLANT-RESPONDENT.

THE ODORISI LAW FIRM, EAST ROCHESTER (TERRENCE C. BROWN-STEINER OF
COUNSEL), FOR PLAINTIFF-RESPONDENT-APPELLANT.


     Appeal and cross appeal from an order of the Supreme Court,
Monroe County (Richard A. Dollinger, A.J.), entered June 10, 2014.
The order, among other things, denied that part of defendant’s motion
seeking to hold plaintiff in contempt.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by vacating the second and fourth
ordering paragraphs and granting defendant’s motion to the extent that
plaintiff is directed to pay the costs associated with a Medicare
Advantage plan for defendant, as agreed upon by the parties, until the
death of either party except during such time as defendant obtains
employment with health benefits or until such time as she remarries,
and as modified the order is affirmed without costs.

     Memorandum: In this post-divorce action, defendant moved for an
order seeking, inter alia, to hold plaintiff in contempt for failing
to provide medical insurance coverage that was previously ordered by
this Court (LoMaglio v LoMaglio, 104 AD3d 1182, 1183-1184; Lo Maglio v
Lo Maglio, 273 AD2d 823, 824, appeal dismissed 95 NY2d 926). After a
hearing upon our remittal for, inter alia, a determination of the
level of health insurance coverage the parties had during the
marriage, Supreme Court denied defendant’s motion except to the extent
that it directed plaintiff to pay some of defendant’s counsel fees and
costs. Defendant appeals and plaintiff cross-appeals.

     Contrary to defendant’s contention, we agree with plaintiff that
the court properly determined that he should not be held in contempt
because defendant failed to prove by “ ‘clear and convincing
evidence’ ” that plaintiff “ ‘violated a clear and unequivocal mandate
of the [C]ourt’ ” to provide medical insurance coverage at the same
level that he provided during the marriage because defendant failed to
                                 -2-                           757
                                                         CA 14-02297

establish what that specific level of medical insurance coverage was
(Belkhir v Amrane-Belkhir, 128 AD3d 1382, 1382). We also agree with
plaintiff that the court properly determined that defendant failed to
prove by a “preponderance of the evidence,” as required by the terms
of the stipulation made by the parties prior to the hearing, the
extent and nature of the unreimbursed medical expenses incurred by her
after 2008. We likewise reject defendant’s further contention that
the trial court, “ ‘upon . . . remittitur, . . . [erred in failing] to
obey the mandate of the higher court, and render judgment in
conformity therewith’ ” (Wiener v Wiener, 10 AD3d 362, 363). The
record establishes that the court, in its written decision following
the hearing, properly acknowledged its obligation to direct plaintiff
to pay for medical insurance coverage as we directed upon remittal,
but further explained that it lacked the evidence to direct plaintiff
to pay a specific amount. Indeed, we recognize that, as a result of
defendant’s failure to prove the level of health insurance coverage
that the parties had during the marriage, the court was unable to
implement our prior order.

     Nevertheless, our prior decision remains the law of the case, and
we decline to disturb that decision (see generally Cluff v Day, 141 NY
580, 582-583). Plaintiff correctly contends that, because defendant
is receiving Medicare, he is not obligated pursuant to our prior order
to provide defendant with “double coverage,” i.e., a medical insurance
policy. Rather, plaintiff must pay the costs necessary to supplement
defendant’s Medicare coverage. We therefore modify the order by
directing plaintiff to pay the costs associated with a Medicare
Advantage plan as agreed upon by the parties. Inasmuch as we required
plaintiff to provide medical insurance coverage because of the
permanent nature of defendant’s medical condition (LoMaglio, 273 AD2d
at 824), we further conclude that plaintiff’s obligation shall
continue until the death of either party, except during any period in
which defendant has employment with health insurance benefits, or
until such time as she remarries. We therefore further modify the
order accordingly.

     We have considered the remaining contentions of the parties and
conclude that they are without merit.




Entered: August 19, 2015                        Frances E. Cafarell
                                                Clerk of the Court
