
    Steven Valladares, Respondent, v Anne B. Valladares, Appellant.
    Argued February 15, 1982;
    decided April 6, 1982
    
      POINTS OF COUNSEL
    
      Daniel D. Abramtsov and Jacob Rabinowitz for appellant.
    I. The equitable distribution statutes should be applied retroactively to pending actions. (Gleason v Gleason, 26 NY2d 28; Hessen v Hessen, 33 NY2d 406; Christian v Christian, 42 NY2d 63; Deschamps v Deschamps, 103 Misc 2d 678; Walker v Walker, 155 NY 77; Smith v Smith, 55 Misc 2d 172; Packer v Packer, 55 Misc 2d 74; Taplinger v Taplinger, 55 Misc 2d 103.) II. The lower court erred in prohibiting the application of equitable distribution in light of poststatute pleading amendments. (Bilhorn v Farlow, 60 AD2d 755; Cerrato v Crown Co., 58 AD2d 721; Trybus v Nipark Realty Corp., 26 AD2d 563; Jagoda v City of Dunkirk, 43 AD2d 795; Guntzer v Westchester County, 273 App Div 902, 298 NY 755; Edelman v Edelman, 88 Misc 2d 156.)
    
      Alan Paul Ansell and Jay J. Davis for respondent.
    I. The equitable distribution provision of the newly enacted amendment of section 236 of the Domestic Relations Law expressed in subdivision 2 of part B applies only to actions commenced after the July 19, 1980 effective date of the legislation. (People v Florus, 67 Misc 2d 809; Goding v Goding, 106 Misc 2d 423; Cooper v Cooper, 103 Misc 2d 689; Matter of Gramott Corp. v Graves, 255 App Div 255.) II. The court below correctly concluded that respondent commenced the action prior to the July 19, 1980 effective date of the equitable distribution provisions pursuant to section 211 of the Domestic Relations Law and CPLR 304, thereby precluding appellant from coverage under the equitable distribution provisions. (Caffaro v Trayna, 35 NY2d 245.)
   OPINION OF THE COURT

Jones, J.

A defendant in an action for divorce commenced prior to the effective date of the amendment to the Domestic Relations Law which enacted the “Equitable Distribution Law”, was properly denied leave to amend her answer after that date to demand property distribution in accordance with the amended statute as an incident to a counterclaim for divorce set out in the proposed pleading.

On April 2, 1980 plaintiff husband commenced this action for divorce on the ground of cruel and inhuman treatment. The wife’s answer, in addition to denials, contained an affirmative defense of adultery on the part of the husband. At the time of service of the foregoing pleadings there had not yet been enacted the amendment to section 236 of the Domestic Relations Law, which was to incorporate in that statutory section a part B, commonly known as the “Equitable Distribution Law”, enlarging substantially the power of the court to distribute property held during marriage in certain matrimonial actions (L 1980, ch 281, § 9).

After the effective date of the statutory amendment (July 19, 1980) the husband amended his complaint, pursuant to a court order granted without opposition, to add a second cause of action, predicated on adultery alleged to have been committed by the wife in June, 1980. Following service of an answer to the amended complaint, on October 2, 1980 the wife moved to amend that answer to assert a counterclaim for divorce on the ground of adultery and to demand equitable distribution of the marital property pursuant to part B of section 236 of the Domestic Relations Law, as amended. Her husband opposed the application. Supreme Court granted only a portion of the relief requested, permitting the wife, if she so chose, to amend her answer to add the counterclaim for divorce, but denying permission to add a request for equitable distribution. On her appeal the Appellate Division unanimously affirmed the determination of Supreme Court. We now affirm the determination of the appellate court.

In so doing, we call attention at the outset to the circumstance that the granting of permission to amend a pleading when, as here, a motion for such relief is made under CPLR 3025 (subd [b]), normally lies within the sound discretion of the court. In order to disturb the exercise of that power as both courts below have exercised it — adversely to the request to amend — we would have to conclude that, as a matter of law, defendant wife had an undeniable right to add to her answer a demand for marital property distribution pursuant to part B of section 236 of the Domestic Relations Law, as amended effective July 19, 1980. No such conclusion is compelled by the statute in question; indeed, it is the contrary conclusion (reached by both courts below) which is supported by and conforms to the mandate of new section 236.

The Legislature was meticulous in making explicit provision within its enactment of the 1980 amendment to the statute as to the applicability of the two substantive parts of amended section 236. The language employed is unequivocal — “part A shall be controlling with respect to any action or proceeding commenced prior to the date on which the provisions of this section as amended become effective”; “part B shall be controlling with respect to any action or proceeding commenced on or after such effective date”. On approval of the legislation by the Governor, July 19, 1980 became the watershed; property rights in actions commenced prior to that date are to be resolved in accordance with the law as set out in part A; only actions commenced subsequent to that date are subject to the equitable distribution provisions contained in part B. Because the present action was initiated when the summons was served on April 2, 1980 (Domestic Relations Law, § 211; CPLR 304), part B of section 236 of the Domestic Relations Law, as amended has no application to it and defendant wife’s request in this action for relief pursuant to part B was properly barred from inclusion in her proposed amended answer. Accordingly, denial of her motion to amend in that respect was mandated as a matter of law.

The argument is made that, although the present action was begun before July 19,1980, the wife’s claim for divorce and for equitable distribution must be deemed to be interposed when her amended answer containing the counterclaim incorporating them would be served, which, because her motion to amend was made on October 2, 1980, would necessarily fall after the critical July date. Reliance for this proposition is placed by the wife on CPLR 203 (subd [c]) (counterclaim interposed when pleading containing it is served) and CPLR 203 (subd [e]) (claim asserted in amended pleading not deemed to be interposed when original pleading served if original pleading did not give notice of transactions to be proved under amended pleading) — two practice statute sections prescribing when claims are to be regarded as having been asserted for purposes of determining whether they are time barred.

Acceptance of the proposition behind CPLR 203 (subds [c], [e]) does not assist defendant wife in the present case, however, for the determinative time for applicability of part B of section 236 of the Domestic Relations Law is not when her claim was interposed but when the action in which it was interposed was commenced. Had the Legislature intended to draw a finer line and to differentiate, or to permit the courts to differentiate, between multiple claims asserted in a single matrimonial action (with respect to the applicability of the substantive provisions of part B of new section 236) language was available for it to do so. It did not elect to use such language, however, but designated commencement of the action as the critical event.

Moreover, it must be borne in mind that the legislation with which we are concerned was not the result of casual, pro forma enactment, but was the subject of intensive study, discussion and comment by a variety of groups across the State prior to its adoption. In view of the extensive and considered attention given this significant statutory amendment at the time of its drafting, debate and approval we cannot conclude that the choice of words was inadvertent or that the phraseology employed was intended to have other than its plain meaning. Nothing in the submission of the wife is to the contrary, and legislative history to which our attention has been invited is consistent with the view we take. It is not the function of this court to discard the clear language adopted by the Legislature and, by a process of judicial legislative revision based on notions of procedural refinements, to substitute for it other words which, as CPLR 203 (subd [c]) and CPLR 203 (subd [e]) demonstrate, were known to the Legislature but were not employed in the statute as enacted.

Defendant’s argument that, to accomplish the objective of the Legislature in amending section 236 of the Domestic Relations Law thereby to meet current social values in fairly distributing property accumulated during the course of a marriage, part B should be applied to litigation pending at the time of adoption, is one more properly addressed to that body — which made a determination to the contrary in the statute as enacted — rather than to this court.

Because there was no error in the disposition by the Appellate Division the order appealed from should be affirmed, with costs.

Meyer, J.

(dissenting). The majority’s seductively simple semantic solution is, in my view, both so unfair as to be presumptively contrary to the Legislature’s intent, if not unconstitutional, and unrealistic in its analysis of that intent.

Its unfairness is revealed more by what it does not say than by what it does, for it makes no mention at all of what the result would be had Mrs. Valladares commenced an independent action rather than asserted a counterclaim. Clearly such an action would be, within the language of part A of section 236, an “action commenced on or after such effective date” and, within the language of part B, an action “for a divorce * * * commenced on and after the effective date of this part,” notwithstanding that her husband may thereafter have been successful in obtaining an order consolidating or requiring joint trial of her action with his (see Berger v Berger, 84 AD2d 545). To make the power to award the increased share of marital property provided for in part B turn on whether the spouse to whom the award would be made served a counterclaim in the other spouse’s earlier commenced action or began a separate and independent action after the effective date of part B is wholly unreasonable as a matter of both procedure and substance.

It is unreasonable as a matter of procedure because CPLR 3019 (subd [d]) mandates that “A cause of action contained in a counterclaim * * * shall be treated, as far as practicable, as if it were contained in a complaint, except that separate process, trial or judgment may not be had unless the court so orders” (italics supplied). Section 211 of the Domestic Relations Law and CPLR 304, relied on by the Appellate Division to fix when a matrimonial action is commenced, speak to how jurisdiction is acquired and clearly were not written with a view to determining when the action commenced within the meaning of parts A and B of section 236 of the Domestic Relations Law. CPLR 203 (subd [c]) to which the majority refers is confirmatory of the direction in CPLR 3019 (subd [d]), for together they establish that, though no summons need be served for a counterclaim, the cause of action it states will be treated as if it were contained in a complaint, that is, as CPLR 203 (subd [c]) states “is interposed when a pleading containing it is served.” In light of those provisions, and particularly of CPLR 3019 (subd [d]), there was no reason for the Legislature, in amending section 236 of the Domestic Relations Law, to speak specifically to an action for divorce commenced by the service of an answer containing a counterclaim.

The majority’s conclusion is unreasonable as a matter of substance because it makes the right to equitable distribution turn on the form of the pleading by which the divorce action is begun, a consideration that is entirely without significance in relation to the substantial property interests that in many cases will be involved and which serves no rational legislative purpose. Counterclaims were unknown to the procedural law of New York until introduced by chapter 392 of the Laws of 1852 (see Second Ann Report of NY Judicial Council, NY Legis Doc, 1936, No. 48, pp 124-129; 3 Weinstein-Korn-Miller, NY Civ Prac, par 3019.01). Their addition to our procedural law was essentially for the convenience of the courts, which would otherwise have to try some of the same issues twice (Second Ann Report of NY Judicial Council, p 123 [“the avoidance of multiplicity of suits”]), and of the defendant who by pleading his claim as a counterclaim could avoid the expense of two trials and the possibility of conflicting decisions. It was never intended to award a substantive benefit to a plaintiff against, whom it is asserted, as the majority now holds it does. How egregiously wrong is its substantive result is graphically illustrated when one considers that the rule now adopted forecloses equitable distribution without regard to fault or the merit of the counterclaim: a spouse further above suspicion than Caesar’s wife can, therefore, be deprived of equitable distribution benefits by a mate living in open adultery if only the mate’s attorney had the foresight to serve a summons on or before July 18, 1980 in a wholly unjustified and unjustifiable divorce action, provided only the spouse’s attorney, seeking to save his client’s money and the court’s time, makes the fatal mistake of pleading the spouse’s divorce for adultery cause of action as a counterclaim rather than in a separate action.

The majority’s result is unrealistic in its analysis of legislative intent, as well. First, the Legislature must be presumed to have been aware of the definition and direction of CPLR 3019 and, therefore, to have regarded it as wholly unnecessary to speak of “an action or counterclaim” in the 1980 amendment, because it had already defined one as included within the other. Second, though it is true, as the majority notes, that the section was the subject of intensive study not only by a number of. legislative com-. mittees but by a number of Bar associations, individually and in consortium (Foster & Freed, Law & the Family [1982 Supp], § 33:1, pp 798-799), nothing in any of the literature generated during the six years that equitable distribution bills were before the Legislature prior to adoption of the 1980 bill suggests that either the proponents or the opponents of the concept intended to make, or argued for making, the availability of equitable distribution benefits turn on the form in which the matrimonial claim was, presented to the court rather than the date on which it was presented by the proponent of the claim. Any realistic appraisal of the legislative process must recognize that what the enacting bodies react to is the recommendations of its own committees and legislative drafting service and the pressures brought to bear by interested outside groups, and that its reaction is at times the compromise of deliberate obscurity, leaving to the courts the divination of what was intended. Here, however, it is the court that obscures the legislative intent by reading the word “action” without reference to CPLR 3019 and then insisting that the “plain meaning” of the word excludes a counterclaim, even though CPLR 3019 says the exact contrary.

The order of the Appellate Division should be reversed, the question certified should be answered in the negative, and the matter should be remitted to Supreme Court with directions to grant defendant’s motion to amend including the demand for equitable distribution.

Chief Judge Cooke and Judges Jasen, Gabrielli and Wachtler concur with Judge Jones; Judge Meyer dissents and votes to reverse in a separate opinion in which Judge Fuchsberg concurs.

Order affirmed, with costs. Question certified answered in the affirmative. 
      
      . Section 236 of the Domestic Relations Law, as amended, states its substantive provisions in two parts. Part A, providing for alimony and financial disclosure, is essentially similar to prior section 236 except that it is gender-neutral. Part B incorporates new, equitable distribution provisions for property held during marriage. As to applicability of the parts, the first sentence in the amendment provides: “Except as otherwise expressly provided in this section, the provisions of part A shall be controlling with respect to aiiy action or proceeding commenced prior to the date on which the provisions of this section as amended become effective and the provisions of part B shall be controlling with respect to any action or proceeding commenced on or after such effective date.” In a similar vein, subdivision 2 of part B provides in part: “Except as provided in subdivision five of this part [not affecting application as to time], the provisions of this part shall be applicable to actions for an annulment or dissolution of a marriage, for a divorce, for a separation, for a declaration of the nullity of a void marriage, for a declaration of the validity or nullity of a foreign judgment of divorce, for a declaration of the validity or nullity of a marriage, and to proceedings to obtain maintenance or a distribution of marital property following a foreign judgment of divorce, commenced on and after the effective date of this part.”
     
      
      . Based on the diction of the opinion at the Appellate Division it might be said that its affirmance of the denial of the wife’s motion was based on a determination of law rather than an exercise of discretion.
     
      
      . As the dissenter notes, we do not reach or consider the contention that had Mrs. Valladares commenced an independent action after July 19,1980 (rather than interposing a counterclaim in the pending action, as she did), the rights of the parties in the independent action should then be determined under the provisions of part B of new section 236. That issue is not now before us. Whether, when the marital status of the parties has been placed in issue in an action commenced by one of them prior to July 19, 1980, the other, by instituting an independent post-July 19,1980 action, may avoid the effect of the legislatively fixed cut-off date remains to be adjudicated when the issue is properly raised before us.
     
      
      . That the counterclaim was asserted after July 19, 1980, the effective date of the 1980 amendments tó section 236 of the Domestic Relations Law, distinguishes this case from those such as Gellman v Gellman (80 AD2d 735) and Goding v Goding (106 Misc 2d 423), in which it was sought to amend or discontinue an action or counterclaim begun prior to July 19, 1980.
     
      
      . (See Urbanski v Urbanski, 107 Misc 2d 215; Bofinger v Bofinger, 107 Misc 2d 573; Miller v Miller, NYLJ, Dec. 24, 1980, p 15, col 5.)
     
      
      . The CPLR applies to matrimonial actions except as specific provisions of the Domestic Relations Law otherwise provide (cf. Domestic Relations Law, § 232, subd a; and see CPLR 105, subd [a]; 4312, subds [2], [5]; 4502). That this is true as to a counterclaim in a matrimonial action is established beyond cavil by the repeal on the recommendation of the Judicial Council (Fourteenth Ann Report of NY Judicial Council, NY Legis Doc, 1948, No. 14, pp 53-55, 223-227) of section 1168 of the Civil Practice Act, which had contained special provision for a matrimonial counterclaim, on the ground that the section was unnecessary in light of the provisions of that act concerning counterclaims generally contained in section 266 of the Civil Practice Act (the predecessor of CPLR 3019), and the failure to include in either article 11-A or article 13 of the Domestic Relations Law any provision regulating matrimonial counterclaims. Nor is there anything in the legislative history or wording of the 1980 amendment to section 236 of the Domestic Relations Law which suggests that CPLR 3019 (subd [d]) was not intended to apply to a matrimonial counterclaim, as there was, for example, when CPLR 3212 (former subd [d]) was repealed and section 211 of the Domestic Relations Law was amended to permit unlimited summary judgment in a matrimonial action.
     
      
      . No argument has been made that it would be impracticable, either generally or in this particular case, to treat defendant’s counterclaim as if contained in a separate complaint (see Bofinger v Bofinger, 107 Misc 2d 573, supra; Foster & Freed, Law & the Family [1982 Supp], § 33:3, p 802).
     
      
      . Section 211 of the Domestic Relations Law provides that “A matrimonial action shall be commenced by the service of a summons * * * or a summons and verified complaint.” CPLR 304 states that “An action is commenced and jurisdiction acquired by service of a summons.” (Emphasis added.)
     
      
      . That the Legislature so considered when enacting the CPLR is borne out by its notation with respect to now repealed CPLR 3212 (subd [d]) governing summary judgment in a matrimonial action. Subdivision 4 of prior rule 113 of the Rules of Civil Practice had authorized summary judgment on the basis of documentary evidence or official records with respect to “an action or counterclaim” in a matrimonial action. The revisers stated with respect to CPLR 3212 (subd [d]) (then designated as 3252, subd [d]) that the 1960 bill had been amended in that “ ‘Cause of action’ substituted for ‘action or counterclaim’ with no change in meaning” (Fifth Prelim Report of Advisory Comm on Practice & Procedure, NY Legis Doc, 1961, No. 15, p 490 [italics supplied]).
     