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June 22, 2021

NYS Governor Cuomo Has Authority to Toll Statutory Time Limitations

In Nikki Brash v. Neil M. Richards, the Appellate Division, Second Department addressed whether the series of emergency executive orders issued by NYS Governor Cuomo amounted to either a toll or suspension of New York State court filing deadlines. In Brash, respondents argued by motion, among other things, that the filing of the notice of appeal was untimely, as it was in excess of the 30 days allocated by CPLR 5513(a). The Second Department concluded that the initial emergency order and the nine subsequent orders amounted to a toll and the issuing of the same was within the governor’s authority.

On March 20, 2020, Governor Cuomo issued an executive order declaring a state of emergency and setting aside various deadlines in response to the COVID-19 pandemic. The order provided in part that “any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state . . . or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020.” The March 20, 2020, order was followed by nine additional orders extending the suspension and tolling period through November 3, 2020.

The court rejected the respondents’ argument that Executive Law 29-A expressly gives the governor the authority to “suspend” statutes or delay expiration of the time period until the end of the suspension, but does not give authority to “toll” them, which excludes the period from the calculation. Executive Law 29-A(1) provides that the governor “may by executive order temporarily suspend specific provisions of any statute, local law, ordinance, or orders, rules or regulations, or parts thereof . . . ” during a state of emergency and if compliance would frustrate actions necessary to cope with the emergency. Pursuant to a subsequent section of that provision, any such executive order “may provide for the alteration or modification of the requirements of such statute, local law, ordinance, order, rule or regulation suspended, and may include other terms and conditions.”i

The court ultimately classified the tolling of time limitations in a statute as an “alteration” or “modification” of the requirements of a statute and thus within the governor’s authority pursuant to Executive Law 29-A. The court also rejected the argument that seven of the nine orders issued subsequently to the March 20, 2020, executive order include sufficient language indicating the continuation of the “modifications of law” made in the prior executive orders, despite not including the word “toll.”

Practitioners should be aware that the Second Department decision is not binding on the other departments, and the Court of Appeals has not yet addressed the issue. However, prior instances of where the filing deadlines were suspended, such as 9/11 and Hurricane Sandy, are factually distinct from the COVID-19 pandemic where the New York State judicial system came to a halt. Notwithstanding, counsel should remain vigilant when it comes to filing within prescribed deadlines and cognizant of raising defenses of noncompliance with filing deadlines when appropriate.  

If you have any questions regarding the content of this alert, please contact Amanda Miller, associate, at amiller@barclaydamon.com, or another member of the firm’s Torts & Products Liability Defense Practice Area.

We also have a specific team of Barclay Damon attorneys who are actively working on assessing regulatory, legislative, and other governmental updates related to COVID-19 and who are prepared to assist clients. Please contact Yvonne Hennessey, COVID-19 Response Team leader, at yhennessey@barclaydamon.com, or any member of the COVID-19 Response Team, at COVID-19ResponseTeam@barclaydamon.com.

See Executive Order 29-A(2)(d).

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