Toll or Suspension? The Implications of the COVID-19 Pandemic-Related Executive Orders on the Statue of Limitations and Civil Litigation

At the dawn of the pandemic, Former New York Governor Andrew Cuomo declared a State Disaster Emergency and issued Executive Orders that affected many aspects of daily life in New York State. The orders also regulated the regular function of the court systems and statutes of limitations in an attempt to avoid the chaos caused by the pandemic.

Despite the intent of the Executive Orders, extending the “suspension” or “tolling” period from March 20, 2020, through and including November 3, 2020, has only created further uncertainty over court-imposed deadlines due to the dubious and limited interpretation of the Executive Orders and the inherent ambiguities within. Specifically, New York courts are divided as to whether the Executive Orders: (1) implemented a toll for the number of days that the orders were in effect; or (2) suspended all deadlines until the expiration of the orders on November 3, 2020.

Executive Order 202.8. was the first order of the series that addressed civil litigation deadlines. See 9 NYCRR 8.202.8. On March 20, 2020, the order, entitled “Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency,” suspended or modified time limitations set forth in any statute, or legislative or administrative act during the time period of March 20, 2020, until April 19, 2020. It specifically stated that the litigation deadlines are: “. . . hereby tolled from the date of the executive order until April 19, 2020.”

Subsequent to the March 20, 2020, Executive Order, the civil litigation deadlines continued to be tolled or suspended through a series of nine additional and consecutive Executive Orders. The orders use the terms “toll” and “suspension” interchangeably, thus providing an indeterminate understanding as to whether the orders intended a toll or a suspension. Specifically, the language in Orders 202.14, 202.28 and 202.38 used the phrase “do hereby continue the suspensions and modifications of law, and any directives, not superseded by a subsequent directive... .” The subsequent Orders 202.48, 202.55, 202.55.1, and 202.60 used the phrase “temporarily suspend or modify any statute, local law, ordinance, order, rule, or regulation, or part thereof, ... .” Unlike the first Executive Order, none of the orders used the word “toll.” It was not until Executive Order 202.67, issued October 4, 2020, that the word “toll” was used again in relation to the statute of limitations. See 9 NYCRR 8.202.67. The final order, Executive Order 202.72, used the terms “toll” and “suspension” synonymously. The order stated:

Pursuant to Executive Order 202.67, the suspension for civil cases in Executive Order 202.8, as modified and extended in subsequent Executive Orders, that tolled 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 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 statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby no longer in effect as of November 4, 2020…

See 9 NYCRR 8.202.72.

While the Executive Order uses the words “toll” and “suspension” synonymously to describe the same action, those terms provide for completely different outcomes. A “toll stops the running of the applicable period of limitation for an finite time period, and the period of the toll is excluded from the calculation of the relevant time period.” See Baker v. 40 Wall Street Holdings Corp., 74 Misc.3d 381, 383 (Sup. Ct. Kings County 2022). While a “suspension does not exclude its duration from the calculation of the relevant time period, rather, it simply delays the expiration of the time period or filling deadline until the end date of the suspension.”

New York courts have rendered inconsistent application of the Executive Orders regarding the statute of limitations. However, it was not until Brash v. Richards, 195 A.D.3d 582, 149 N.Y.S.3d 560 (Sup. Ct. App. Div. 2d Dep’t 2021) that a higher court finally provided insight. In Brash, the Second Department analyzed whether a notice of appeal was timely served in light of the Executive Orders. A notice of entry was served on October 2, 2020, which ordinarily would start a 30-day clock to file an appeal. The appellant filed an appeal on November 10, 2020, 39 days after the order was entered, arguing that the 30 days to appeal did not begin until the “Tolling Order,” as extended, expired after November 3, 2020. The Second Department held that the appeal was timely based on the Executive Orders, as they presented a “true toll.” The court conceded that the subsequent orders failed to use the word “toll.” The court ruled that the word “toll” was expressly and plainly used in the first Executive Order and subsequent orders used identical language absent the word “toll,” therefore, insinuating that the intent of the orders was to implement a “toll” rather than “suspension.”

However, the court did not discuss the effect of the Executive Orders and filing deadlines that were set to expire outside of the “suspension period.” Recently, two New York Supreme Court decisions have addressed this concern. The Honorable Judge Debra Silber of the New York Supreme Court, Kings County, issued a decision on January 5, 2022, almost a year after the Brash decision, in Baker, that held that the Executive Orders imposed a suspension and not a toll. Judge Silber addressed three pertinent points:

1. That the language within the Executive Orders was continuously titled and used the term “suspension,” rather than “toll,” up to and including the last order, indicating the intent of the legislators by the plain language of the orders;
2. That “if there was a toll, the period from the Governor’s first order on March 20, 2020, to his last order on November 3, 2020, (228 days) would be added to the statute of limitations for every person with a claim who had not filed suit by March 20, 2020, and also added to every type of deadline that arose during the suspension period,” which was not what was intended, nor was it provided therein; and
3. The facts in Brash were distinguishable as the filing deadline fell within the suspension period, rather than after the expiration date of the orders.

See Baker, 74 Misc. 3d at 383. This reasoning was further supported by the February 7, 2022, decision of the Honorable Judge Robert I. Colaras, of the New York Supreme Court, Queens County, in Cruz v. Guaba, 159 N.Y.S.3d 828 (Sup. Ct. Queens County 2022).

With the interpretations by the courts in Baker and Cruz, it is not clear if other New York appellate courts will blindly defer to the Brash reasoning, as the interpretation remains a novel one. Or whether an appeal might potentially be taken to the New York Court of Appeals to finally weigh in on the appropriate application of the Executive Orders. Nevertheless, it may be some time until there is a clear answer, which will continue uncertainty in civil litigation.

*Erica is an associate in our New York City office. She can be reached at 212.376.6446 or elarias@mdwcg.com.

_{Defense Digest, Vol. 28, No. 3, October 2022 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2022 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}