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March 3, 2022

When a Stay Is Not a Stay

On March 20, 2020, NYS Governor Cuomo issued Executive Order No. 202.8 (9 NYCRR 8.202.8), which provided, “I hereby temporarily suspend or modify, for the period from the date of this Executive Order through April 19, 2020 the following . . . any specific time limit for the commencement, filing, service of any legal action, notice, motion, or other process or proceeding . . . .” Governor Cuomo later issued a series of nine subsequent executive orders that extended the suspension or tolling period eventually through November 3, 2020, that “hereby continue[s] the suspensions, modifications of law, and any directives, not superseded by a subsequent directive.” There were 228 days between the issuance of the initial executive order and November 3, 2020.   

The Appellate Division, Second Department in Brash v. Richards,i holding that the governor’s executive orders tolled the time period for the appellant to file a notice of appeal, found that a notice of appeal filed within seven days after November 3, 2020, was timely because it was filed within thirty days of November 3, 2020. At least two lower courts have applied the Second Department’s reasoning in holding that time limits that would have expired between March 20, 2020, and November 3, 2020, were extended by the governor’s executive orders.ii

Other courts, however, have held that the governor’s executive orders acted as a stay for those deadlines that did not expire between March 20, 2020, and November 3, 2020. For example, in Boulter Industrial Contractors, Inc. v. Barilla America NY, Inc.,iii the plaintiff filed a breach of contract action based on an alleged breach that occurred in June 2015. The action was filed on November 22, 2021. The defendant moved to dismiss the complaint based on statute of limitations grounds. The plaintiff opposed the motion, relying on Brash for the proposition that the governor’s executive orders extended the statute of limitations for the action by 228 days and, therefore, the action was timely. The defendant sought to distinguish Brash on the basis that the statute of limitations for the plaintiff’s breach of contract action had not expired between March 20, 2020, and November 3, 2020, so any tolling created by the executive orders did not apply to the action. The court accepted that argument and held that any tolling period that may have been created by the governor’s executive orders did not apply because the plaintiff’s statute of limitations had not expired during the period covered by the orders and no emergency existed that could justify the toll. 

The Second Department is the only appellate court to address this issue. Until the issue is judicially resolved, the best practice is to plead a statute of limitations defense if the plaintiff is late in filing the action, thereby preserving the defense.

If you have any questions regarding the content of this alert, please contact Alan Peterman, partner, at apeterman@barclaydamon.com; Matthew Larkin, Torts & Products Liability Defense Practice Area chair, at mlarkin@barclaydamon.com; or another member of the firm’s Torts & Products Liability Defense Practice Area.

                                                           

iBrash v. Richards, 195 A.D.3d 582 (2d Dep’t 2021).
iiSee Vivar v. BSREP UA River Crossing LLC, 2021 N.Y. Misc. LEXIS 5497 (Sup. Ct. N.Y. County, Index No. 162024/2018, October 28, 2021)(statute of limitations that would have expired between March 20, 2020, and November 3, 2020, was extended); Karamchand v. Extell Dev., 2021 N.Y. Misc. LEXIS 6314 (Sup. Ct. N.Y. County, Index No. 153214/2018, December 9, 2021)(same).
iiiBoulter Industrial Contractors, Inc. v. Barilla America NY, Inc., Index No. 00877-2021 (Sup. Ct. Livingston County, February 8, 2022).
ivSee also Baker v. 40 Wall St, Holdings Corp., 2022 N.Y. Misc. LEXIS 18 (Supreme Ct., Kings County, Index No. 513153/2019, January 5, 2022); Cruz v. Guaba, 2022 N.Y. Misc. LEXIS 473 (Supreme Ct., Queens County, Index No. 710876/21, February 7, 2022).

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