60 N.Y.2d 244 | NY | 1983
OPINION OF THE COURT
On this appeal we are asked to decide whether it was error to grant defendant wife’s motion to discontinue a counterclaim interposed in an action for divorce after the effective date of part B of section 236 of the Domestic Relations Law, the “Equitable Distribution Law”, when plaintiff husband commenced the action prior to that date.
On July 17,1980, two days before the effective date (July 19, 1980) of the Equitable Distribution Law, plaintiff husband commenced an action for divorce. On August 7,1980, after the effective date of the new law, defendant answered the complaint in which she asserted a counterclaim for divorce. Defendant then moved for leave to discontinue her counterclaim for the conceded purpose of commencing a separate action and obtaining the benefits of the Equitable Distribution Law. Supreme Court granted defendant’s motion to discontinue. The Appellate Division unanimously affirmed, reasoning that discontinuance would serve only to permit correction of a tactical error of form, not substance, because defendant could have commenced an independent action after July 19,1980, rather than interposing a counterclaim in the pending action. We agree.
Nor do our holdings in Valladares v Valladares (55 NY2d 388), Tucker v Tucker (55 NY2d 378), Zuckerman v Zuckerman (56 NY2d 636) and Pollack v Pollack (56 NY2d 968) require a different result. In Valladares, the defendant wife served her answer prior to the effective date of the statute and then moved after the new statute became effective to amend her answer to assert a counterclaim for divorce and demand equitable distribution. Defendant was allowed to amend the answer to add her counterclaim for divorce, but the demand for equitable distribution was denied. The issue of whether a party, as in this case, may institute an independent action after the effective date of the Equitable Distribution Law and invoke the new law, when a marital action has already been commenced by the opposing party prior to the effective date of the new law, was expressly left open. {Id., at p 393, n 3.)
In Tucker, Pollack and Zuckerman, the moving party commenced the action for divorce prior to the effective date of the statute and then, after the effective date, sought an order of discontinuance. We held that in view of the express legislative intent not to make the new law applicable to actions pending before July 19, 1980, there was no justification for the exercise of judicial discretion, and that such motions must be denied.
Accordingly, the order of the Appellate Division should be affirmed, with costs.
Chief Judge Cooke and Judges Jones, Wachtler, Meyer, Simons and Kaye concur.
On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs. Question certified answered in the affirmative.