Since appellant relinquished any rights she had in the subject plans under her separation agreement with the decedent, incorporated but not merged in the divorce judgment, she would have to disgorge any proceeds received from the administrator regardless of whether the plans qualify as employee benefit plans subject to the ERISA provision that proceeds are to be distributed only to the designated beneficiaries (cf., Weizenecker v. Weizenecker, 140 A.D.2d 517, lv denied 72 N.Y.2d 809). Nor is a genuine issue of fact as to whether the decedent waived this provision of the separation agreement raised by his failure to change the beneficiary, given the uncontroverted evidence of the decedent's dire illness during the entire brief period between his separation from appellant and his death, and circumstances indicating that he believed he did change the beneficiary (see,Curley v. Giltrop, 68 N.Y.2d 651). Moreover, appellant is in breach of the separation agreement by reason of her refusal to turn over the proceeds already distributed to her, and her refusal to execute the documents necessary to accomplish a relinquishment of her interest as beneficiary of the plans, and we modify accordingly. We have considered and rejected appellant's other arguments.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.