2001: A Potential Face-Saving Odyssey

By: Jonathan H. Freiberger

Sometimes a party makes a mistake in the course of litigating its case. Absent prejudice to the other party, the Court is free to disregard the mistake and proceed as if the mistake never occurred. CPLR 2001 provides, in relevant part that:

At any stage of an action, including the filing of a summons with notice, summons and complaint or petition to commence an action, the court may permit a mistake, omission, defect or irregularity, including the failure to purchase or acquire an index number or other mistake in the filing process, to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded provided that any applicable fees shall be paid.

In Smith v. Maines Paper & Food Service, Inc., 2026 WL 1579767 (2d Dept. June 3, 2026), a personal injury matter, the defendants opposed plaintiffs’ motion for summary judgment on the issue of liability by submitting three unsworn expert reports and one unsworn expert report. Plaintiffs, in its reply, argued that the submissions were not in evidentiary form and, therefore, inadmissible. Thereafter, the motion court requested that plaintiffs submit a statement of material facts, which plaintiffs neglected to serve with their summary judgment motion.[1] Defendants submitted a counterstatement of material facts that included sworn expert affidavits in which, inter alia, the substance of the previously unsworn expert report was reaffirmed. The motion court accepted the affirmations and denied plaintiffs’ summary judgment motion. In affirming the motion court’s decision, relying on CPLR 2001, the Second Department recognized that the submissions made by defendants with their counterstatement of material facts “cured the defects contained in the defendants' opposition papers, and the plaintiffs suffered no prejudice, as they had an opportunity to address the opinions of the defendants' expert witnesses in their reply papers.”

In Henriquez v. New York City Housing Authority, 249 A.D..3d 414 (1st Dept. 2026), the motion court denied defendant’s motion to strike claims in a bill of particulars because, contrary to the requirements of CPLR 2214(a), the defendant’s notice of motion indicated it was seeking relief pursuant to CPLR 3211. The First Department, relying on CPLR 2001, modified the order and stated that the motion court, “should have disregarded this technical deficiency because the notice of motion and affirmation made clear that it sought to strike claims in the bills of particulars that were not alleged in the notice of claim.” Id. at 415 (citations omitted).

The plaintiff in Williams v. MTA Bus Co., 224 A.D.3d 467 (1st Dept. 2024), sought relief under CPLR 2001 after it failed to comply with the mailing requirements of CPLR 308(2). Although the motion court granted plaintiff’s motion for a default judgment, the First Department reversed and stated that plaintiff’s “failure to comply with CPLR 308(2)’s mailing requirement was not a mere technical infirmity that may be overlooked by the court pursuant to CPLR 2001” because it is a jurisdictional defect that “greatly increases the likelihood that a defendant will not receive the pleadings and have an opportunity to answer.” Id. at 469 (citation and internal quotation marks omitted; hyperlink added); see also Nicholas v. Martuscello, 245 A.D.3d 1055, 1058-59 (3d Dept. 2026) (quoting Park Premium Enterprises, Inc. v. Norben Lofts, LLC, 220 A.D.3d 661, 662 (2d Dept. 2023)) (“the complete failure to file the initial papers necessary to institute an action is not the type of error that falls within the court's discretion to correct under CPLR 2001”).

Against this backdrop, we discuss AB International Investments, LLC v. GFE NY, LLC, a case decided by the Appellate Division, Second Department, on July 22, 2026. AB International was a breach of contract action in which the plaintiff filed an amended complaint. One of the defendants moved to dismiss the amended complaint but neglected to attach a copy of the amended complaint to the motion and omitted the names of two defendants from the caption on the notice of motion.[2] The motion court, in its order, denied the motion to dismiss solely because of the defendant’s omissions. The defendant appealed.

The Second Department modified the order on appeal because the motion court “improperly denied the defendants’ motion solely on the procedural grounds that the defendants failed to annex the amended complaint to their initial moving papers and made certain omissions in the caption contained in the defendants’ notice of motion, which the parties did not raise or litigate.” In so holding, the Court stated:

CPLR 2001 permits a court, at any stage of an action, to disregard a party's mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced. Here, not only was the amended complaint electronically filed and available to the court and the parties, but the amended complaint was submitted by the plaintiff in opposition to the motion and by the defendants in reply, and the plaintiff did not assert that it was prejudiced by the defendants' omission. Moreover, to the extent the variation between the caption appearing on the defendants' notice of motion and the amended complaint constituted a defect in form (see CPLR 2101[c], [f]; 2214[a] ), the plaintiff did not assert that it was prejudiced by the variation. Under such circumstances, the court should have determined the defendants' motion on the merits. [Citations omitted; hyperlinks added.]

Because the parties briefed the merits of the appeal before the motion court and on appeal, the Second Department addressed the merits of defendant’s motion and dismissed several causes of action in the amended complaint.

Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP.

This article is for informational purposes and is not intended to be and should not be taken as legal advice.

[1] This occurred prior to the repeal of 22 NYCRR 202.8-g, which permitted a motion court to require a statement of material facts with a motion for summary judgment.

[2] Some of the facts recited herein were obtained from the court files available on the NYSCEF system.