Academic journal article Albany Law Review

All Is Not Forgiven - the Application of CPLR 2001 to Mendon Ponds Defects

Academic journal article Albany Law Review

All Is Not Forgiven - the Application of CPLR 2001 to Mendon Ponds Defects

Article excerpt


The purpose of this article is to review the courts' application of CPLR 2001, as amended, in the context of commencement time errors, which may occur when filing an action or when serving process. CPLR 2001, entitled "[m]istakes, omissions, defects and irregularities" (1) is also known as the "Forgiveness Statute" (2) since it allows a court to correct or ignore various types of procedural errors that may occur throughout the litigation. (3) It provides in relevant part:

      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. (4)

The aim of the legislature in granting the court the power of forgiveness over certain procedural missteps was to prevent otherwise valid causes of action from being dismissed on technical, nonprejudicial grounds, thereby ensuring that such actions could proceed to a final resolution on the merits. (5)

Notably, prior to the 2007 amendment, CPLR 2001 provided authority for the court to correct nonprejudicial errors at any time during an action except for those errors occurring at the time of commencement. (6) These commencement time defects are now known as "Mendon Ponds" defects and are so named after a well-known 2002 Court of Appeals case. (7) The result was that cases were dismissed on technicalities under the theory that such defects impacted the court's subject matter jurisdiction. (8) Because of this, the New York State Legislature saw fit to amend the statute in 2007 to address these nonprejudicial commencement time errors. (9)

Interestingly, despite the 2007 amendment to CPLR 2001, Mendon Ponds-type defects can still result in the dismissal of otherwise meritorious cases due to errors at the commencement stage of an action. (10) Since Mendon Ponds defects deprive the court of subject matter jurisdiction, it is critical that practitioners understand the scenarios in which the Forgiveness Statute does not apply. (11) In order to fully understand when CPLR 2001 will forgive a commencement time error, a basic understanding of the statutes governing the commencement process is important.


CPLR 2001 as amended now mandates the correction of any nonprejudicial errors that may occur during the commencement of an action. (12) Despite this statutory language of forgiveness, it is still critical that a plaintiff commencing an action undertake the correct steps when filing their initial papers, whether it is a summons and complaint, a summons with notice, or a petition, since mistakes in the filing process may be deemed jurisdictional in nature and subject the case to dismissal. (13) In order to properly commence an action one must first be familiar with the directives set out in CPLR 304 (14) and CPLR 2102. (15) In addition to properly commencing an action, the plaintiff must also serve a defendant pursuant to Article 3 of the CPLR, which covers jurisdiction. (16)

Beginning with CPLR 304, the plaintiff must file a summons and complaint, summons with notice, or a petition in accordance with CPLR 2102. (17) In addition to filing with a clerk in the courthouse, a plaintiff can also file an action by "facsimile transmission" or through "electronic means." (18) Once filed, the papers are date stamped by the clerk of court and assigned an index number. (19) The statute further requires that a fee shall be paid or "[s]uch filing shall not be accepted. …

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