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Litigation, Columns

June 28, 2021

Appellate Court Clarifies Impact Of COVID-19 Tolling Orders

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On March 20, 2020, Governor Cuomo signed an executive order tolling most time limits under New York law in light of the COVID-19 pandemic (the “Tolling Order”), for a period that was subsequently extended in a series of further executive orders through November 3, 2020.  We addressed the Governor’s initial order in a prior publication, and we here provide a summary and update with respect to the impact of those orders according to a recent decision from the Supreme Court of the State of New York, Appellate Division, Second Judicial Department, holding that those orders constituted a toll of time limits and not merely a suspension of deadlines.

The Second Department held that an appeal was timely filed based on the orders signed by Governor Cuomo.  See Brash v. Richards, et al., No. 1812/12 (2d Dep’t June 2, 2021). The executive orders effected the suspension and tolling of any specific time limit for “the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding” for the period from March 20, 2020 (the date of Tolling Order) through November 3, 2020.  This applied to any such time limits “prescribed by any procedural laws” of New York, expressly including the civil practice law and rules (CPLR), criminal procedure law, the family court act, the court of claims act, the surrogate’s court procedure act, and the uniform court acts, or “any other statute, local law, ordinance, order, rule, or regulation.”  See Tolling Order.

In the case addressed by the Second Department, notice of entry for the order appealed from was served on October 2, 2020, which ordinarily would start a 30-day clock to file an appeal.  Appellant filed an appeal on November 10, 2020, arguing that the 30 days to appeal did not begin until the Tolling Order, as extended, expired after November 3, 2020.  The opposing parties argued that the Governor’s orders did not effect a toll because the Governor lacked the statutory authority to do so, contending that Section 29-a of New York’s Executive Law expressly permits only the “suspen[sion]” of any statute during certain emergencies (including epidemics).  The Court stated that Section 29-a(2)(d) also provided the Governor with the authority to “alter[]” or “modify” the requirements of a statute, and that this included the authority to toll limitations periods rather than merely to suspend them.

Previously, the scope of executive authority under Section 29-a of the Executive Law had rarely been addressed by the courts, and open questions still remain. For example, even if the Governor’s orders constitute a toll, it is possible the Tolling Order could be subject to challenge on the basis that it should be deemed to apply to statutes of limitation but not statutes of repose. As written, however, the Tolling Order appears to include both types of deadlines.

Moreover, even with this recent decision, it is not clear whether courts in other New York appellate courts—such as the First Department, which includes Manhattan—will endorse the same reasoning, or whether an appeal might potentially be taken to the Court of Appeals, New York’s highest court.  It is further unclear how far the scope of the Tolling Order may extend beyond New York State courts to time limits in litigation based on New York law filed in federal courts and other states.  Federal courts and other state courts may be asked to determine whether to actually enforce the Tolling Order, and if so, whether to defer to the Appellate Division’s interpretation.  Thus, the full impact of the Tolling Order may still not be revealed for some time as new legal questions continue to be presented in varying litigation contexts across different courts.

Authors and Contributors

Adam Hakki

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Agnès Dunogué

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Daniel Lewis

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Matthew L. Craner

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