On March 7, 2020, then Governor Andrew A. Cuomo issued Executive Order No. 202, declaring a disaster emergency for the entire State of New York due to COVID-19. On March 20, 2020, Executive Order No. 202.8 was issued, which tolled any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding from March 20, 2020, until April 19, 2020. A series of subsequent Executive Orders extended the suspension or tolling period through November 3, 2020.
Since the issuance of the Executive Orders, questions have swirled about whether they served as a true toll of filing deadlines or simply just a suspension. The distinction between a suspension and a tolling is significant as, under a tolling framework, filing deadlines would be extended for 228 days after November 3, 2020. Under a suspension framework, however, all filing deadlines between March 20, 2020, and November 3, 2020, would expire immediately following the suspension period on November 4, 2020.
The New York Appellate Division, Second Department, issued a decision and order in Brash v. Richards holding that the Executive Orders constituted a true toll of filing deadlines. While the Executive Orders were deemed to be a true toll by the Second Department, questions remained as to the effect of these Executive Orders on matters where filing deadlines were set to expire outside of the tolling period.
Two recent Supreme Court decisions have addressed these concerns. Hon. Debra Silber of New York State Supreme Court, Kings County, issued an Order in Baker v. 40 Wall St. Holdings Corp., holding that as the plaintiff’s statute of limitations fell outside of the tolling period, it was not affected in any way by the Executive Orders. A similar conclusion was reached by Hon. Robert Caloras of New York State Supreme Court, Queens County, in Cruz v. Guaba.
Comment: The two recent Supreme Court decisions have provided some clarity as to how the courts in New York may interpret the effects of the Executive Orders on those cases whose filing deadlines fell outside the March to November tolling period. The Supreme Courts in both Baker and Cruz rejected the respective plaintiffs’ contentions that their statute of limitations had not expired based upon the tolling effect of the Executive Orders. The court in each decision found that the Executive Orders did not toll the statute of limitations for every person or entity with a claim who had not filed suit by March 20, 2020. While certain matters may be afforded the protections under the Brash decision, those matters whose deadlines fell outside of the tolling period may not be afforded the same protections. These decisions will presumably be appealed to the Appellate Division. Until the Court of Appeals weighs in, this issue remains somewhat unresolved, and litigants who commenced actions outside of the normal statute of limitations in reliance of the Executive Orders may be in jeopardy of having their cases dismissed.