This case presents us with still another phase of the ongoing efforts to transform divorce actions begun before the effective date of the equitable distribution statute into one to which the equitable distribution statute is applicable.
*307On May 22,1979, plaintiff, while still living with defendant, served upon him a summons with notice in an action for divorce. Somewhat more than a week later the defendant husband served a notice of appearance and demand for a complaint. In September, after the parties had discussed between themselves the future status of their relations, the husband left the matrimonial domicile. Thereafter the parties, through their counsel, negotiated on the terms of a separation agreement to be embodied in their divorce. These negotiations consumed the balance of 1979 and bore no fruit.
Thereafter plaintiff and her attorney terminated their relations. Accordingly, the negotiations lapsed. Sometime in October, 1980 the husband’s attorney contacted plaintiff, presumptively for the purpose of bringing the negotiations back to life. He then ascertained that plaintiff was no longer represented by counsel. The following month he advised her, by letter, to retain another attorney. She did so and her new attorney served a new summons upon defendant. However, since the second summons was served after the equitable distribution statute became effective, the notice containing the items of relief sought included a demand for equitable distribution.
The husband once again served a notice of appearance with a demand for a complaint. Some three weeks after service of the notice of appearance plaintiff’s counsel sent a stipulation to defendant’s counsel, discontinuing the first action. The purported purpose was to preclude a motion to dismiss the complaint upon the ground that there is another action pending between the same parties for the same cause. Defendant responded with a motion to dismiss so much of the relief claimed in the notice contained on the second summons as demanded equitable distribution. Special Term denied the motion holding that the first action had been abandoned and that service by plaintiff’s current attorney of the “notice of discontinuance” was no more than a formal interment of the first action.
I am aware of the differences in procedural posture between this case and cases such as Valladares v Valladares (55 NY2d 388), Tucker v Tucker (55 NY2d 378), Pollack v Pollack (56 NY2d 968), and Zuckerman u Zucker*308man (56 NY2d 636). Notwithstanding these differences, the thrust of all of these cases is that a divorce action begun prior to the effective date of part B of section 236 of the Domestic Relations Law may not be forsaken so that a new action may be instituted after the effective date of the equitable distribution statute in order that its greater financial benefits may be reaped.
Here, there was never any formal termination of the first action prior to the commencement of the second. Plaintiff did not seek to discontinue it nor did defendant move for its dismissal. It merely lay fallow. Plaintiff recognized this by seeking a stipulation of discontinuance after the second action had been commenced. In these circumstances, I am of the opinion that Special Term erroneously concluded that the “notice” of discontinuance was no more than the last rites for the first action. Hence, I would reverse and grant the motion.
Murphy, P. J., Ross and Lynch, JJ., concur with Kassal, J.; Bloom, J., dissents in an opinion.
Order, Supreme Court, New York County, entered on September 17, 1981, affirmed, without costs and without disbursements.