This is another of the increasing number of matrimonial actions to come before us involving the issue of whether a proceeding commenced prior to the effective date of the Equitable Distribution Law (Domestic Relations Law, § 236, part B), may thereafter be converted into one to which the Equitable Distribution Law is applicable. We are not unaware that this matter comes to us in a posture markedly different from all prior matters. Nevertheless, we are of the view that the teaching of cases such as Tucker v Tucker (55 NY2d 378), Valladares v Valladares *400(55 NY2d 388), Zuckerman v Zuckerman (56 NY2d 636), and Pollack v Pollack (56 NY2d 968), requires that the order of Special Term granting plaintiff the right to discontinue her action for a declaratory judgment commenced prior to the effective date of the Equitable Distribution Law and “to commence a new action including a cause of action for divorce seeking equitable distribution relief in addition to the declaratory relief” be reversed.
Plaintiff and defendant were married in New York City in 1945. Apparently, both continued to live in this State for the next 28 years. In 1972 defendant sued for divorce in the Dominican Republic. The decree entered granted the divorce to defendant and required him to pay to plaintiff alimony in the sum of $50,000 annually. Shortly thereafter defendant remarried. The alimony specified in the decree was paid regularly to plaintiff. In 1978 she commenced an action for a declaration that the alleged divorce between her and defendant was void on the ground that at the time of the divorce she did not reside in the Dominican Republic nor was she amenable to its process and that she had never appeared in that action and by consequence, defendant’s marriage to his new spouse was a nullity. A second cause of action was included predicated upon an alleged tax deficiency assessed against her by the Internal Revenue Service. Seemingly, defendant had claimed a tax deduction for the alimony paid to plaintiff on the ground that it was paid under a divorce decree. Plaintiff sought repayment from defendant of any portion of the assessment which she might be required to pay and, in addition, the expenses of contesting the assessment.
In November, 1981, some two and one-half years after the commencement of the action for the declaratory judgment, plaintiff moved by motion returnable January 19, 1982 for leave to discontinue that action without prejudice. The avowed purpose was so that she might seek to “forthwith commence a new action against defendant for a divorce”. However, she made abundantly clear that the new proposed action would seek all of the relief sought in the action to be discontinued with the addition only of the causes seeking a divorce and equitable relief, and the proposed complaint in the new action so provides. In sub*401stance, the proposed new complaint does no more than add the causes of action for divorce and equitable distribution.
It is not inappropriate to note that section 236 (part A, subd 1) confers upon the court the power to award alimony in any action or proceeding “to annul a marriage or declare the nullity of a void marriage” (italics supplied). The declaratory judgment action sought to be discontinued envisaged precisely that relief; a declaration that the marriage between defendant and his current spouse is a void marriage and that plaintiff is still defendant’s lawful wife. Hence, had plaintiff sought alimony in that action the court was empowered by the section to “direct either spouse to provide suitably for the support of the other as, in the court’s discretion, justice requires, having regard to the length of time of the marriage, the ability of each spouse to be self supporting, the circumstances of the case and of the respective parties” (Domestic Relations Law, § 236, part A, subd 1, par [3]). The discontinuance and the inclusion of the divorce action counts in the new proposed complaint have a single design: to enhance the amount collectible by plaintiff from defendant under part B of section 236, a purpose which both Tucker (supra) and Valladares (supra) instruct us is forbidden.
Accordingly, we would reverse and deny the motion to discontinue.
Carro and Kassal, JJ., concur with Asch, J.; Kupferman, J. P., and Bloom, J., dissent in an opinion by Bloom, J.
Order, Supreme Court, New York County, entered on December 14, 1982, affirmed, without costs and without disbursements.