dissents and votes to affirm the order insofar as appealed from with the following memorandum. Since the plaintiff husband "had the absolute and unconditional right to discontinue the action, without seeking judicial permission through a court order, merely through the service of the notice of voluntary discontinuance upon [the] defendant” wife (Chandler v Chandler, 108 AD2d 1035, 1036; see, Broder v Broder, 59 NY2d 858; Battaglia v Battaglia, 59 NY2d 778, revg 90 AD2d 930, 933-934 on dissenting mem at App Div; Kamhi v Kamhi, 42 AD2d 966; Hutchison v Hutchison, 87 Misc 2d 1071, affd 55 AD2d 817), it cannot be said that the Supreme Court abused its discretion in deeming the husband’s request as an application for discontinuance and ordering the discontinuance of the husband’s action. The majority’s reliance on Tucker v Tucker (55 NY2d 378) and Schneider v Schneider (32 AD2d 630) is misplaced since in those cases the "actions had already progressed to the stage where judicial permission to discontinue” was mandated (Battaglia v Battaglia, supra, at 933). Further, the wife’s verified counterclaim was properly dismissed as not properly interposed in the husband’s action (see, CPLR 3211 [a] [6]). The CPLR does not provide for the service of a counterclaim where a summons is served without a complaint and a subsequent complaint is never served (see, CPLR 3011, 3012; see also, Stevenson v Diamond Fuel Co., 198 App Div 345; White v National Bondholders Corp., 191 Misc 536, affd 273 App Div 963). Matter of Westchester Express v State Ins. Fund (151 AD2d 357) and Brennan v Mead (73 AD2d 926), relied upon by the majority and Weinstein v General Motors Corp. (51 AD2d 335) and Edelman v Edelman (88 Misc 2d 156) are factually distinguishable and do not require a contrary result. While "the CPLR should be liberally construed (CPLR 104) * * * we are not permitted to pre-empt a legislative function and rewrite the provision[s]” concerning the interposition of a counterclaim (Wagner v Comblum, 36 AD2d 427, 429).
Finally, the wife has failed to demonstrate that she would suffer any prejudice from the discontinuance of the husband’s action and the dismissal of her verified counterclaim. As noted *573by the Supreme Court, the wife may commence her own matrimonial action, and, of course, she can seek appropriate pendente lite relief, including exclusive possession of the matrimonial residence. We note that such relief can be sought although the defendant is in prison. Moreover, pursuant to the outstanding order of pendente lite relief, the wife was awarded a judgment against the husband for arrears in maintenance and child support, which had accrued prior to the husband’s incarceration. This judgment is not extinguished by the discontinuance of the action (see, Domestic Relations Law § 236 [B] [9] [b]; § 244). The husband’s support obligations were suspended, in relevant part, because of his incarceration. While the date of the commencement of the matrimonial action is relevant with respect to the determination of what constitutes marital property and its valuation, the trial court has sufficient latitude in equitably distributing the marital property so as to prevent the wife from being deprived of any economic benefits to which she would be entitled (see, Domestic Relations Law § 236 [B] [5] [d]; Schammel v Schammel, 161 AD2d 407; Gross v Gross, 160 AD2d 976; see also, Wegman v Wegman, 123 AD2d 220).