IN RE: the ESTATE OF Michael P. WALLACE (1998)

Appeals (1) from an order of the Surrogate's Court of Rensselaer County (Lang Jr., S.), entered December 13, 1996, which denied respondents' motion to stay a prior court order granting petitioners' application for preaction disclosure, and (2) from an order of said court, entered March 3, 1997, which denied respondents' motion to renew.

On this appeal, the only issue that need be determined is whether Surrogate's Court has subject matter jurisdiction over an application by the administrator of a decedent's estate for preaction disclosure to aid in bringing a wrongful death action.   We respond in the negative and therefore reverse the order of Surrogate's Court denying respondents' motion to stay disclosure.

 It is well settled that Surrogate's Court is a court of limited subject matter jurisdiction and may only entertain those proceedings and exercise those powers conferred upon it by statute (see, Matter of Stortecky v. Mazzone, 85 N.Y.2d 518, 524, 626 N.Y.S.2d 733, 650 N.E.2d 391;  Matter of Garofalo, 141 A.D.2d 899, 900, 528 N.Y.S.2d 939).  SCPA 201 sets forth the basic statutory grant of subject matter jurisdiction to Surrogate's Court (see, Siegel and Connors, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 58A, SCPA 201, at 49), providing that the court shall “exercise full and complete general jurisdiction in law and in equity to administer justice in all matters relating to estates and the affairs of decedents ” (SCPA 201[3] [emphasis supplied];  see, Matter of Stortecky v. Mazzone, supra ).   In matters properly relating to the exercise of that jurisdiction, Surrogate's Court may utilize CPLR procedures and devices and may exercise all powers that Supreme Court would have in exercising like jurisdiction, including incidental powers essential to carrying out express statutory powers (see, SCPA 209[10] ).

 Thus, the inquiry turns to the question of whether an action for wrongful death is a “matter[ ] relating to estates and the affairs of decedents” within the purview of SCPA 201(3).   We think that it is not.   Wrongful death actions, although commenced by the administrator of a decedent's estate, are based not upon damage suffered by the decedent's estate, but rather upon the pecuniary loss suffered by the decedent's distributees (see, EPTL 5-4.4;  Liff v. Schildkrout, 49 N.Y.2d 622, 632, 427 N.Y.S.2d 746, 404 N.E.2d 1288).   Wrongful death claims therefore entail “matters involving controversies between living persons and not matters affecting the estate of the decedent” (Maurer v. Johns-Manville Inc., 126 A.D.2d 524, 526, 510 N.Y.S.2d 648).   Under the circumstances, there can be little question that Surrogate's Court lacks subject matter jurisdiction to entertain wrongful death claims (see, id., at 526, 510 N.Y.S.2d 648;  Matter of Corning, 108 A.D.2d 96, 102, 488 N.Y.S.2d 477, appeal dismissed 66 N.Y.2d 695, 496 N.Y.S.2d 424, 487 N.E.2d 281;  Matter of Lainez, 79 A.D.2d 78, 80, 435 N.Y.S.2d 798, affd. 55 N.Y.2d 657, 446 N.Y.S.2d 942, 431 N.E.2d 303).  Lacking jurisdiction over the underlying action, it necessarily follows that Surrogate's Court lacked the authority to grant the incidental relief sought by petitioner (see, Siegel and Connors, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 58A, SCPA 202, at 114-116).   Under the circumstances, Surrogate's Court should have transferred the matter to Supreme Court (see, N.Y. Const, art VI, § 19[d] ).  We shall do so.

ORDERED that the order entered December 13, 1996 is reversed, on the law, without costs, and matter transferred to the Supreme Court for determination.

ORDERED that the appeal from the order entered March 3, 1997 is dismissed, as academic, without costs.

MERCURE, Justice.

MIKOLL, J.P., and CREW, YESAWICH and PETERS, JJ., concur.