Warshaw v. Warshaw ( 1997 )

Order, Supreme Court, New York County (Walter Tolub, J.), entered April 3, 1997, which denied defendant’s motion for an order directing plaintiff to maintain health insurance coverage as it existed at the time of the parties’ separation agreement, and for judgment in the amount representing uninsured health care expenses incurred, unanimously affirmed, without costs.

We agree with the motion court that plaintiff did not fail to comply with the provision of the divorce judgment requiring him to maintain health insurance providing at least the same coverage to defendant as she had under the policies in effect at the time of the parties’ separation agreement; rather, defendant failed to comply with the “participating provider” requirements of plaintiff’s group health insurance plan as unilaterally amended by the insurer, and of which defendant had been notified. Defendant could have avoided the reimbursement shortfalls she alleges, without reduction in the level of coverage, by choosing a participating provider, and plaintiff should not be penalized for her failure to do so (compare, Rubin v Rubin, 234 AD2d 185, appeal dismissed 89 NY2d 1030). Concur— Rosenberger, J. P., Wallach, Nardelli, Williams and Colabella, JJ.