dissent and vote to reverse in the following memorandum by Levine, J. Levine, J. (dissenting). Undeniably, neither a complaint nor answer was ever served in this action. Therefore, under the clearly expressed language of CPLR 3217 (subd [a], par 1), plaintiff had the absolute and unconditional right to discontinue her action without seeking judicial permission through a court order, merely through the service of the notice upon defendant. This drastically distinguishes the instant case from Pollack v Pollack (56 NY2d 968), Zuckerman v Zuckerman (56 NY2d 636), Valladares v Valladares (55 NY2d 388) and Tucker v Tucker (55 NY2d 378), where the litigation in those pre-July 19,1980 actions had already progressed to the stage where judicial permission to discontinue had to be sought under CPLR 3217 (subd [b]). Where discontinuance by court order is required and sought, the application is addressed to the sound discretion of the court (4 Weinstein-Korn-Miller, NY Civ Prac, par 3217.06). And irrespective of whether the action is a matrimonial one or not, judicial discretion should not be exercised in favor of discontinuance if substantial rights have accrued or the adversary’s rights would be prejudiced thereby (Siegel, New York Practice, § 297, p 353). Pollack, Zuckerman, Valladares and Tucker represent nothing more than the application of these general principles concerning court approval of voluntary discontinuance to attempts by litigants to circumvent the legislative determination not to make the equitable distribution law applicable to actions pending before its effective date. For the reasons given in those decisions, denial of court approval was perfectly consistent with such general principles. In our view, the majority erroneously extends the holding in these cases to instances where voluntary discontinuance is a matter of right, and not subject to court approval. This is sought to be justified on the basis of the existence of some special rule applicable only to attempts to discontinue matrimonial actions. Demonstrably, however, none of the cases cited by the majority to demonstrate the existence of this special rule involved a discontinuance when-a court order was not required or actually sought. Thus, Winans v Winans (124 NY 140) states “2. After the making of the motion to vacate the order of reference, the plaintiff moved the court for leave to discontinue the action” (id., at p 143), and further states “[b]ut an application for leave to discontinue is addressed to the legal, not the arbitrary, discretion of the court” (id., at p 145). In Winston v Winston (21 App Div 371), the statement of the case recites “[ajfter entering the order of reference, the plaintiff obtained an order to show cause why leave to discontinue should not be granted.” Schneider v Schneider (32 AD2d 630) expressly involved an appeal from an order “granting plaintiff husband’s motion to discontinue the separation action instituted by him”. Similarly, in Harley v Harley (19 Misc 2d 74), Bishop v Bishop (62 Misc 2d 436) and Matter of Smith v Smith (62 Misc 2d 574), the decisions expressly recite that they involve applications for court-ordered discontinuance, or the procedural facts indicated that a court order was required. Thus, there is nothing written in Pollack, Zuckerman, Valladares and Tucker, nor in any earlier precedent, which would prevent a party to a pre-July 19, 1980 matrimonial action from taking advantage of any of the procedural devices available without court order under the CPLR in order to bring a subsequent action under the Equitable Distribution Law. Indeed, if anything, the precedent is to the contrary. Thus, because counterclaims are not compulsory under New York civil procedure, it has been held that a party to a matrimonial action *934pending before the effective date of the Equitable Distribution Law is not prevented from commencing a subsequent separate action involving the same issues in order to take advantage of the new law (Valladares v Valladares, 80 AD2d 244, 256-259, affd 55 NY2d 388;2 Berger v Berger, 84 AD2d 545). The Equitable Distribution Law was enacted to remedy the harsh inequities of prior law concerning marital property rights. Certainly, then, there is no good reason for this court to bar a spouse from access to the benefits of the new law by denying her procedural remedies to which she is unconditionally entitled under the CPLR. The delay in pleading here which opened to plaintiff the avenue of discontinuance on notice was as much defendant’s doing as plaintiff’s, and not the result of any devious or unfair conduct which might constitute grounds for any equitable estoppel. For all these reasons, we would reverse Special Term.
. The affirmance of Valladares by the Court of Appeals did not reach this issue (see 55 NY2d 388, 393, n 3).