NAPPI v. NAPPI (1998)

In a matrimonial action in which the parties were divorced by judgment entered July 5, 1995, the defendant former wife appeals from so much of an order of the Supreme Court, Nassau County (Yachnin, J.), entered July 5, 1995, as failed to direct the plaintiff former husband to designate her as beneficiary of a pension plan of the New York State & Local Retirement System with survivorship benefits and pre-retirement survivorship benefits.

ORDERED that the order is reversed insofar as appealed from, with costs, and the matter is remitted to the Supreme Court, Nassau County, for entry of a new order in the form originally submitted to the Supreme Court.

Although the courts possess discretion in fixing equitable distribution awards (see, Domestic Relations Law § 236[B][1][c] ), under the circumstances of this case the court should have directed the plaintiff to choose a pension plan with survivorship benefits and pre-retirement survivorship benefits in accordance with the proposed order submitted by the defendant (see, Munson v. Munson, 250 A.D.2d 1004, 672 N.Y.S.2d 968;  McDermott v. McDermott, 119 A.D.2d 370, 507 N.Y.S.2d 390).   We note that in the event the defendant dies prior to receiving any pension payments, the plaintiff may receive full benefits and choose any pension option available to him.

The plaintiff's remaining contention is without merit.

MEMORANDUM BY THE COURT.