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May 19, 2020

NYS Statutes of Limitation Further Tolled During COVID-19

On May 7, NYS Governor Cuomo issued Executive Order 202.28, extending the prior executive orders that temporarily suspended or modified any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding to June 6. This is consistent with the directive of New York State’s chief judge to limit court operations to essential matters during the pendency of COVID-19.

Governor Cuomo has issued a series of unprecedented executive orders in response to the COVID-19 pandemic, extending all state-based statutes of limitation. Specifically:

  • March 20: Executive Order 202.8 – expressly suspending and tolling all statutes of limitations and other litigation deadlines (commencement, filing, or service of any legal action, notice, motion, or other process or proceeding) under New York law for 30 days. Executive Order 202.8 states, in pertinent part, that “any specific time limit for the … is hereby tolled from [March 20, 2020] through April 19, 2020.”
  • April 7: Executive Order 202.14 – “continu[ing] the suspensions and modifications of law, and any directives, not superseded by a subsequent directive, made by Executive Order 202 and each successor Executive Order to 202, for thirty days until May 7, 2020[.]”
  • April 16: Executive Order 202.18 – extending those provisions until May 15. Executive Order 202.18 states that “Executive Order 202.14 … is hereby continued, provided that the expiration date of such provisions of [prior Executive Orders] … will be effective until 11:59 p.m. on May 15, 2020, unless later extended by a future Executive Order.”

Consistent with Governor Cuomo’s directives, the chief administrative judge of the New York State Courts issued an administrative order on March 22 prohibiting both paper and electronic filings in any matter not included on the list of essential matters. On April 7, the chief administrative judge issued a memorandum to all trial court justices and judges outlining preliminary steps the courts will take to open remote access to the courts for certain actions in non-essential pending cases starting April 13.

Authority

Governor Cuomo’s authority to suspend, modify, or issue directives during a declared emergency is derived from the state legislature’s amendment to Executive Law § 29-a. Under the amendment, which went into effect just a few days before the COVID-19 emergency, the governor may temporarily suspend specific provisions of existing statutes “if compliance with such provisions would prevent, hinder, or delay action necessary to cope with the disaster” (NY Exec. L. § 29-a(1) (amended 2020)). 

The Governor’s authority under the amendment is subject to certain “standards and limits,” including that suspensions of law must be “in the interest of the health or welfare of the public” and “reasonably necessary to aid the disaster effort.” While the suspensions may last no longer than 30 days, they may be extended for an unlimited number of 30-day periods with consent of the legislature after each subsequent period. Therefore, unless the tolling order is extended or otherwise modified again, it will expire on May 15.

Application

Under Governor Cuomo’s most recent executive order, all NYS statutes of limitation periods are tolled from March 20 through May 15. Depending on the course of the pandemic and decisions about when to open the courts to new filings, that date may be extended or altered by future executive orders.

On its face, Executive Order 202.8 may be understood to operate as a blanket toll on any time limitation prescribed by NYS laws. The express use of the word “tolled” may be interpreted as suspending the passage of time or “stopping the clock” on all time limitations for the duration of the tolled period (Artis v. District of Columbia, 138 S. Ct 594, 598 (2018)). While this broad interpretation is certainly most consistent with the underlying purpose of the executive order (e.g., to encourage social distancing to slow the spread of COVID-19), it is also unprecedented.  A blanket toll diverges greatly from any prior statewide emergency suspensions of limitation periods.

For example, the executive orders issued in the wake of the September 11 terrorist attacks and Hurricane Sandy were interpreted by the courts so as to create “grace periods,” which applied only to those actions whose limitation periods would have ended during the time period when CPLR 201 was suspended. Any actions with limitations outside the suspension period were unaffected.

If Executive Order 202.8 and its extensions are interpreted as having general applicability to all limitations periods prescribed under state law, the current tolling period (56 days) would apply to all deadlines, regardless of whether the limitations period would otherwise expire during the period of the suspension (between March 20 and May 15) or at some other time. Various litigation events may be impacted, including, but not limited to statutes of limitations; deadlines to file, oppose, or reply to motions; deadlines to file notices of appeal; motions to renew or reargue; and deadlines to serve or respond to discovery.

For example, a negligence action with a three-year statute of limitation that accrued on March 20, 2020, would normally have to be commenced in New York State within three years (by March 20, 2023). Now, that cause of action, arguably, will get an extension of no less than 56 days (March 20, 2020 to May 15, 2020 being excluded from the limitation period), making the new deadline May 15, 2023.

By its terms, Executive Order 202.8 applies only to time limits “prescribed by the procedural laws of the state” and has no effect on statutes of limitations for causes of action that arise under federal law or under other the laws of any other states or countries. However, it may apply to cases brought in federal court and other state courts where NYS procedural law is applied. While some states are following New York State’s tolling approach, some states are issuing grace periods, and others are choosing not to extend the periods at all. Accordingly, choice of law disputes will likely take on added significance in the future.

Conclusion

The effects of Governor Cuomo’s unprecedented tolling of statutes of limitation may be felt long after the unprecedented COVID-19 pandemic subsides. Although Governor Cuomo’s intentions may have been pure and his executive orders seem rather simple on their face, he arguably acted beyond the scope of his authority under NY Exec. L. § 29-a(1) and usurped the functions of the legislature. One city court judge has already questioned the constitutionality of these emergency orders because they are delaying preliminary hearings for people who have been arrested and jailed for crimes. Although the inmates’ due-process rights were arguably violated, the court ultimately ruled they could not override the administrative order suspending all non-essential proceedings. As the courts slowly expand their functions and operations, a number of complex legal issues will likely be raised (e.g., retroactive application, choice of law, and application to contractual limitations), and the scope of Governor Cuomo’s tolling orders will be subject to judicial interpretation.

If you have any questions regarding the content of this alert, please contact Shannon Howley, associate, at showley@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.

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