Opinion
February 3, 1995
Appeal from the Supreme Court, Oneida County, Parker, J.
Present — Denman, P.J., Pine, Lawton, Doerr and Davis, JJ.
Judgment unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum:
Defendant contends that Supreme Court erred in failing to distribute plaintiff's non-vested New York State pension. We agree. It is well-settled that a non-vested pension is marital property subject to equitable distribution (Burns v. Burns, 84 N.Y.2d 369; Cavaretta v. Cavaretta, 127 A.D.2d 1002). Thus, we modify the order by directing the entry of a Qualified Domestic Relations Order entitling defendant to one half of that portion of the New York State pension earned during the marriage (see, Majauskas v. Majauskas, 61 N.Y.2d 481), and we remit the matter to Supreme Court to determine that amount.
We have reviewed defendant's remaining contention and conclude that it is lacking in merit.