Analysis In arguing that the divorce action must be dismissed, the wife cites the general rule that a divorce action abates upon the death of one of the parties ( Matter of Forgione, 237 AD2d 438 [2d Dept 1997], lv denied 90 NY2d 804). Mr. D'Onofrio responds that the courts have created a narrow exception to this rule to permit entry of a judgment where there has been "a final adjudication of divorce but [the court] has not performed `the mere ministerial act of entering the final judgment'" ( Matter of Forgione, 237 AD2d at 438, quoting Cornell v Cornell, 7 NY2d 164, 170; see also Zuckerman v Zuckerman, 34 AD3d 403 [1st Dept 2006]).
Decided July 1, 1997 Appeal from 2d Dept: 237 A.D.2d 438 MOTIONS FOR LEAVE TO APPEAL
( Sperber v. Schwartz , 139 A.D.2d 640, 642, 527 N.Y.S.2d 279 [2d Dept. 1988], lv dismissed 73 N.Y.2d 871, 537 N.Y.S.2d 496, 534 N.E.2d 334 [1989], lv denied 74 N.Y.2d 606, 543 N.Y.S.2d 399, 541 N.E.2d 428 [1989] ). "Although an exception to this rule exists where the court has made a final adjudication of divorce but has not performed โthe mere ministerial act of entering the final judgment,โ " that exception does not apply here inasmuch as the court had merely granted some pretrial orders but had not made any final adjudication of divorce ( Matter of Forgione , 237 A.D.2d 438, 438, 655 N.Y.S.2d 552 [2d Dept. 1997], lv denied 90 N.Y.2d 804, 661 N.Y.S.2d 831, 684 N.E.2d 281 [1997], quoting Cornell v. Cornell , 7 N.Y.2d 164, 170, 196 N.Y.S.2d 98, 164 N.E.2d 395 [1959] ; seeAcito v. Acito , 72 A.D.3d 493, 493-494, 898 N.Y.S.2d 133 [1st Dept. 2010] ; cf.Matter of Estate of Agliata , 222 A.D.2d 1025, 1025, 636 N.Y.S.2d 255 [4th Dept. 1995] ). In this instance, the husband's death "abated the ... action for a divorce and ancillary relief" ( Bordas v. Bordas , 134 A.D.3d 660, 660, 19 N.Y.S.3d 763 [2d Dept. 2015] ; seeForgione v. Forgione , 231 A.D.2d 603, 604, 647 N.Y.S.2d 811 [2d Dept. 1996] ).
ORDERED that the order is affirmed, without costs or disbursements. The Supreme Court correctly determined that the plaintiff's death, which occurred shortly after the parties executed a pretrial stipulation with respect to the grounds for divorce, abated the instant action for a divorce and ancillary relief (see generally Cornell v Cornell, 7 NY2d 164, 169; King v Kline, 65 AD3d 431; Flaherty v Lynch, 292 AD2d 340; Matter of Forgione, 237 AD2d 438; Sperber v Schwartz, 139 AD2d 640; Davis v Davis, 75 AD2d 861, affd 52 NY2d 850), divesting the court of jurisdiction and necessitating dismissal of the defendant's motion (see Davis v Davis, 75 AD2d at 861-862; King v Kline, 65 AD3d 431; Flaherty v Lynch, 292 AD2d 340). Contrary to the defendant's contention, the stipulation was not the equivalent of a final adjudication of the substantive rights of the parties and, therefore, did not entitle the parties to have a final judgment of divorce entered nunc pro tunc to the date of the stipulation (see Matter of Alfieri, 203 AD2d 562).
ORDERED that the order is affirmed, without costs or disbursements.The Supreme Court correctly determined that the plaintiff's death, which occurred shortly after the parties executed a pretrial stipulation with respect to the grounds for divorce, abated the instant action for a divorce and ancillary relief (see generally Cornell v. Cornell, 7 N.Y.2d 164, 169, 196 N.Y.S.2d 98, 164 N.E.2d 395; King v. Kline, 65 A.D.3d 431, 884 N.Y.S.2d 229; Flaherty v. Lynch, 292 A.D.2d 340, 738 N.Y.S.2d 78; Matter of Forgione, 237 A.D.2d 438, 655 N.Y.S.2d 552; Sperber v. Schwartz, 139 A.D.2d 640, 527 N.Y.S.2d 279; Davis v. Davis, 75 A.D.2d 861, 427 N.Y.S.2d 891, affd. 52 N.Y.2d 850, 437 N.Y.S.2d 77, 418 N.E.2d 670), divesting the court of jurisdiction and necessitating dismissal of the defendant's motion (see Davis v. Davis, 75 A.D.2d at 861โ862, 427 N.Y.S.2d 891; King v. Kline, 65 A.D.3d 431, 884 N.Y.S.2d 229; Flaherty v. Lynch, 292 A.D.2d 340, 738 N.Y.S.2d 78).Contrary to the defendant's contention, the stipulation was not the equivalent of a final adjudication of the substantive rights of the parties and, therefore, did not entitle the parties to have a final judgment of divorce entered nunc pro tunc to the date of the stipulation (see Matter of Alfieri, 203 A.D.2d 562, 611 N.Y.S.2d 226).
By order dated August 27, 2001, the Supreme Court determined, inter alia, that the amended prenuptial agreement was enforceable and barred any equitable distribution of the assets of the plaintiff's decedent, and that the defendant was entitled only to limited financial disclosure. On May 17, 2002, the defendant's appeal from that order was heard by this court, and on August 19, 2002, the plaintiff's decedent died. It is well-settled that the death of one party to a divorce action prior to judicial determination dissolving the marriage causes the action to abate since the marital relationship between the parties no longer exists ( see Cornell v. Cornell, 7 N.Y.2d 164, 169; Matter of Forgione, 237 A.D.2d 438; Sperber v. Schwartz, 139 A.D.2d 640, 642). Accordingly, since the plaintiff died prior to judicial determination dissolving the marriage, the action abated and the appeal must be dismissed ( see Kenzer v. Kenzer, 144 A.D.2d 439, 440).
We agree with the Supreme Court that the action did not abate at the time of the husband's death. The entry of the divorce judgment five months later was a mere ministerial act since the divorce had been granted and all of the issues had been resolved (see, Cornell v. Cornell, 7 N.Y.2d 164; Brown v. Brown, 208 A.D.2d 485; Jayson v. Jayson, 54 A.D.2d 687; cf., Forgione v. Matter of Forgione, 237 A.D.2d 438). Under the circumstances of this case, the court's equal distribution of the marital assets was not an improvident exercise of discretion (see, Bisca v. Bisca, 108 A.D.2d 773; cf., Balsamo v. Balsamo, 200 A.D.2d 649).
To be sure, the entry of judgment pursuant to DRL ยง170(7) may not be regarded as a pure formality, as the statute itself provides that judgment may not be granted on the grounds of "irretrievable breakdown" unless and until issues of equitable distribution, maintenance, child custody and visitation, child support, and counsel and expert fees have been resolved by the parties or determined by the court and incorporated in the judgment. See, id. Cf., Matter of Forgione, 237 A.D.2d 438 (2d Dept. 1997). The conclusion nevertheless obtains that, the parties having commenced divorce proceedings and stipulated to a "No Fault" divorce-thereby eviscerating the unity of person in husband and wife in marriage underlying a tenancy by the entirety, there would appear to be no reason to delay a legal severance of the tenancy where a balancing of the equities would dictate a sale of the marital residence pendente lite to avoid financial hardship for the family and/or to preserve marital assets for equitable distribution.
It is well settled law that when a party to a divorce action dies prior to entry of a final judgment of divorce, the action abates because the marital relationship between the parties no longer exists (Matter of Forgione, 237 A.D.2d 438 [2d Dept 1997]). While 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 the final judgment" (Cornell v. Cornell, 7 N.Y.2d 164, 169-170 [1959]; Matter of Rivera, 130 A.D.3d 932 [2d Dept 2015]), the record at this juncture does not support a finding that this exception is applicable here.
Conversely, Ms. Germain's attorney argues that the Stipulation is enforceable despite the decedent's death prior to entry of the divorce judgment. It is well settled that when a party to a divorce action dies prior to entry of a final judgment of divorce, the action abates because the marital relationship no longer exists (Matter of Forgione, 237 AD2d 438 [2d Dept 1997]). However, the abatement of the divorce action does not necessarily render unenforceable any agreements, including agreements regarding distribution of property rights.