COVID Related Executive Orders and their Effect on the Statute of Limitations in New York

Commentary by Krystina Maola, Esq.

The pandemic-related tolling of the statute of limitations in New York has caused great uncertainty over the interpretation of the applicable Executive Orders issued by Governor Cuomo. On June 2, 2021, the New York Appellate Division, Second Department issued a decision and order in Brash v. Richards concluding that the Executive Orders issued by Governor Andrew Cuomo constituted a true toll of filing deadlines and not a suspension of the same.  This decision represents the first binding decision relating to the Executive Orders and will likely guide the trial courts in each of the remaining appellate departments in the state.

Governor Cuomo first tolled the limitations periods on March 20, 2020, when he issued Executive Order No. 202.8, providing in pertinent 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, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate’s court procedure act, and the uniform court acts, 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…”

Executive Order No. 202.8.

Thereafter, Governor Cuomo issued a series of subsequent Executive Orders which extended the suspension or tolling period set forth in Executive Order No. 202.8 through and including November 3, 2020.  Executive Order No. 202.67.

Although the Second Department determined that the language of the Executive Orders constituted a true toll of filing deadlines (naturally including statutes of limitations), time will tell if the remaining Appellate Departments will follow suit or determine that the language was intended to be merely a suspension of deadlines.

Under the suspension framework, which the Second Department held was not applicable, the statute of limitations would have merely been suspended from March 20, 2020 through November 3, 2020.  Once the suspension was lifted, all filing deadlines that expired during the suspended period would have been delayed until the end of the suspension.  These deadlines would have subsequently expired on November 4, 2020.  Brash v. Richards, — N.Y.S.3d —, 2021 WL 2213786, 2021 N.Y. Slip. Op. 03436 (App. Div. 2d Dep’t June 2, 2021) (citing Foy v. State of New York, 71 Misc. 3d 605, 608 (Ct. Cl. February 16, 2021)).

Should the remaining appellate courts follow the holding in Brash and decide the Executive Orders were meant as a toll of filing deadlines, this would extend filing deadlines for a period of 228 days.  See McLaughlin v. Snowlift Inc. et al, 71 Misc. 3d 1226(A), 2021 WL 2173276 at *2 (N.Y. Sup. Ct. Kings C’nty 2021).  Therefore, any statute of limitations that was set to expire on November 3, 2020 (the last day the Executive Orders provided for tolling) will now expire on June 19, 2021.

Based on decisions being made by various trial courts across the state, it is likely that the Executive Orders will be read as a toll of filing deadlines, rather than a suspension, should the issue be appealed.  Nevertheless, until the Court of Appeals weighs in on the issue, litigants who filed late actions in reliance on the Executive Orders continue to be in jeopardy of their cases being dismissed based on the expiration of the statute of limitations.

For more information, please contact Krystina Maola at kmaola@gvlaw.com or by phone at the firm’s New York office at 212-683-7100.