Opinion
December 22, 1995
Appeal from the Supreme Court, Erie County, Howe, J.
Present — Green, J.P., Pine, Wesley, Balio and Boehm, 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: Supreme Court rendered its decision granting a divorce to Michael Agliata on February 4, 1988. Michael Agliata died on March 6, 1988, before entry of the judgment of divorce and before the court rendered a decision on equitable distribution. Because the court rendered its decision granting a divorce during the lifetime of Michael, the action did not abate and the right to equitable distribution survived Michael's death (see, McGovern v Getz, 193 A.D.2d 655, lv dismissed 82 N.Y.2d 741; Peterson v Goldberg, 180 A.D.2d 260, 263, lv dismissed 81 N.Y.2d 835).
The court properly determined that the real property at 3051 Kulp Road constituted marital property. Defendant failed to establish that the parties were not married at the time of that acquisition. The court erred, however, in concluding that defendant had no separate property interest in the property located at 2347 New Jerusalem Road. Defendant established that she inherited a one-third interest in that property from her mother and that, when she and her husband purchased the property from her mother's estate, the value of that one-third interest was applied toward the purchase price. Plaintiff submitted no evidence to the contrary. Thus, we modify the judgment on appeal by providing that defendant has a separate property interest equal to one third of the value of that property and by vacating the distribution of the marital property. The court awarded the New Jerusalem Road property to plaintiff, subject to a life estate to defendant. Because of the manner of distribution of that property and the substantial value of defendant's separate interest in it, we remit this matter to Supreme Court for a redistribution of the marital property.