dissents and votes to affirm the order appealed from, in a memorandum in which Rubin, J., concurs. In my view, Special Term properly dismissed the action for divorce commenced in August, 1972, as abandoned. Although neither party had sought a discontinuance (CPLR 3217, subd [a]) and defendant never sought a dismissal for lack of prosecution (CPLR 3216), I cannot agree with my learned colleagues that “[tjhere was absolutely no indication of any intent on plaintiff’s part to abandon the 1972 action during the nine-year interval”. In or about July, 1981, plaintiff commenced a second action for divorce in the Supreme Court, New York County (hereafter second action), based upon the 1962 separation agreement. In the complaint in the second action, verified by the plaintiff, he alleged that “no other matrimonial action for divorce between the parties is pending in any court of competent jurisdiction”. A similar allegation is contained in defendant’s answer interposed in the second action in which she counterclaimed for divorce based upon allegations of cruel and inhuman treatment, and requested equitable distribution and maintenance. These averments constituted judicial admissions (Cook v Barr, 44 NY 156; Richardson, Evidence [Prince, 10th ed], § 217), and Special Term had a right to consider them in reaching its decision. U The majority also ignores defendant’s claim that the parties reconciled in October, 1973 and lived together as husband and wife until April, 1976. While plaintiff denies that there was a reconciliation, his only excuse for his failure to prosecute the 1972 action for nine years is that “my attorney * * * assured me that failure to *775press it would not be prejudicial, since we could always place the case on the trial calendar if my wife demanded it”. 11 Plaintiff makes the identical claim for a conversion divorce in the second action that he made in the 1972 action. On the other hand, defendant’s counterclaim for divorce interposed in the second action is the only divorce action pursued by her, and the continued pendency of the 1972 action does not preclude defendant from pursuing her own action for divorce and seeking equitable distribution (Motler v Motler, 60 NY2d 244, 246; Phelps v Phelps, 84 AD2d 911). 11 We are mandated to liberally construe the CPLR (CPLR 104), and while defendant’s motion may have been made in the wrong proceeding, and may have been untimely made, I believe that Special Term was not thereby precluded from making “such order as justice requires” (CPLR 3211, subd [a], par 4), and that the order dismissing the 1972 action, as abandoned, without prejudice to the continued prosecution of the second action, should be affirmed. I cannot see how the plaintiff is prejudiced thereby, if he can establish that the separation agreement executed more than 20 years ago is still viable, since marital property is defined as “property acquired by either or both spouses during the marriage and before the execution of a separation agreement” (Domestic Relations Law, § 236, part B, subd 1, par c; emphasis added). On the other hand, there will be a substantial savings in judicial energy. 11 But, since the majority holds that there is no legal basis for the dismissal of the 1972 action, at least the two actions should be tried together since the defendant cannot obtain the relief she is seeking in the 1972 action (see Phelps v Phelps, supra, p 912).