IN RE: Joseph S. FORGIONE (1997)

In a proceeding pursuant to SCPA article 10 to obtain letters of administration for the estate of Joseph S. Forgione, the petitioner Christie Forgione appeals, as limited by her brief, from so much of a decree of the Surrogate's Court, Queens County (Nahman, S.), dated January 18, 1996, as granted the motion of the objectant Linda Ferrara Forgione for summary judgment sustaining her first objection to the petition, decreed that the objectant was the decedent's surviving spouse, and appointed the objectant administrator of the decedent's estate.

ORDERED that the decree is affirmed insofar as appealed from, with costs payable by the appellant personally.

 Contrary to the petitioner's contention, the Surrogate correctly determined that the decedent died prior to the entry of a final judgment of divorce, and that the objectant Linda Ferrara Forgione is thus the decedent's surviving spouse (see, EPTL 5-1.2).   Where, as here, a decedent dies during the pendency of a divorce action, the action abates because the marital relationship between the parties no longer exists (see, e.g., Forgione v. Forgione, 231 A.D.2d 603, 647 N.Y.S.2d 811 [2d Dept., 1996];  see also, Matter of Alfieri, 203 A.D.2d 562, 611 N.Y.S.2d 226;  Sperber v. Schwartz, 139 A.D.2d 640, 527 N.Y.S.2d 279).   Although an exception to this rule exists where the court has made a final adjudication of divorce but has not performed “the mere ministerial act of entering final judgment” (Cornell v. Cornell, 7 N.Y.2d 164, 170, 196 N.Y.S.2d 98, 164 N.E.2d 395;  see also, Brown v. Brown, 208 A.D.2d 485, 617 N.Y.S.2d 48;  Van Pelt v. Van Pelt, 172 A.D.2d 659, 568 N.Y.S.2d 160), the record does not support the petitioner's claim that this exception is applicable in this matter.   To the contrary, the Judicial Hearing Officer who presided over the decedent's matrimonial action expressly advised the parties that no judgment of divorce would be signed until all of the issues referred to him had been resolved.   Since the decedent died before the matrimonial hearing could be completed and all issues resolved, entry of a judgment of divorce cannot be considered a mere ministerial act (see, Turano, 1996 Supp Practice Commentaries, McKinney's Cons Laws of N.Y. Book 17B, EPTL 5-1.2, 1997 Pocket Part, at 34;  cf., Brown v. Brown, supra;  Van Pelt v. Van Pelt, supra).

MEMORANDUM BY THE COURT.