Updated: 2021 April 26
In New York, as in most states, a lawsuit must be filed within a specific time frame. The laws that govern those time frames are statutes of limitation. For example, in New York, a defamation claim must be filed within one year of the publication or communication of the defamatory statement. The COVID-19 Executive Orders have an impact on civil practice statute of limitations. Due to the conflicting language in the orders themselves, how much of an impact they have may need to be decided by the courts in due time.
The hardships of the COVID-19 pandemic are varied and widespread. Since March 7, 2020, Governor Andrew Cuomo has exercised Executive power during the COVID-19 pandemic through issuance of various executive orders. On March 7, 2020, Governor Cuomo issued Executive Order 202, which declared a State disaster emergency for the entire State of New York. Subsequently, his Executive Orders have covered a range of topics that affect daily life in New York, including the regular function of the court systems and statutes of limitation. This blog will address the conflicting language in the various orders, the legal issues the different language creates, arguments related to interpreting the uncertainties, and the impact on civil practice deadlines.
LANGUAGE USED IN THE EXECUTIVE ORDERS
EXECUTIVE ORDER 202.8 – MARCH 20, 2020
Executive Order 202.8 was the first order that addressed civil litigation deadlines. On March 20, 2020, the order—entitled “Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency”—temporarily suspended or modified any time limitations set forth in the referenced statute, legislative or administrative act from March 20, 2020 until April 19, 2020. Specifically, the order stated:
“In accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis, 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 . . . the civil practice law and rules . . . is hereby tolled from the date of the executive order until April 19, 2020.”
The legal implications of using the word “tolled” is significant. Tolling is when the relevant number of days is added to the statute of limitations period, thus expanding the time period. A “suspension,” on the other hand, operates like a pause on the time period until the relevant date. The definitions of tolling and suspension are discussed in more detail below.
CONTINUED EXTENSION OF EXECUTIVE ORDER 202.8
Since March 20, 2020, the civil practice law, among other provisions, continued to be tolled or suspended through multiple Executive Orders: 202.14 (issued April 7, 2020), 202.28 (issued May 7, 2020), 202.38 (issued June 6, 2020), 202.48 (issued July 6, 2020), 202.55 (issued August 5, 2020), 202.55.1 (issued August 6, 2020), and 202.60 (issued September 4, 2020).
The language in several of these orders repeated the phrase: “do hereby continue the suspensions and modifications of law, and any directives, not superseded by a subsequent directive . . . .” (See Exec. Order Nos. 202.14, 202.28, 202.38). Compare that phrase to the following phrase found in several subsequent orders: “temporarily suspend or modify any statute, local law, ordinance, order, rule, or regulation, or part thereof, . . . .” (See Exec. Order Nos. 202.48, 202.55, 202.55.1, 202.60). Importantly, none of these Executive orders continuing the suspension used the word “toll”, like the first order—Executive Order 202.8—clearly did. It was not until Executive Order 202.67, issued October 4, 2020, that the word toll was used again related to the statutes of limitation.
EXECUTIVE ORDER 202.67 – OCTOBER 4, 2020: NOTICE THAT SUSPENSION/TOLLING WAS NOT CONTINUING
On October 4, 2020, Executive Order 202.67 was issued and contained a notice that the civil practice law provisions were no longer going to be suspended after November 3, 2020. Specifically, the order stated:
“The suspension 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 . . . the civil practice law and rules . . . or by any statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby continued, as modified by prior executive orders, provided however, for any civil case, such suspension is only effective until November 3, 2020, and after such date any such time limit will no longer be tolled . . . .”
Confusingly, the words “suspension” and “tolled” seem to be used interchangeably. For example, the order stated, “for any civil case, such suspension is only effective until November 3, 2020, and after such date any such time limit will no longer be tolled . . . .” In the same sentence, the order used these two legally distinct words to describe the same action.
EXECUTIVE ORDER 202.72 – NOVEMBER 3, 2020
On November 3, 2020, Executive Order 202.72 was issued as lifted the civil practice suspensions as of November 4, 2020. Specifically, 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 . . . the civil practice law and rules . . . 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 . . . .”
Similar to Executive Order 202.67, the relevant civil practice section uses both “suspension” and “tolled” to describe the same action. The language of the orders themselves confuse the issue of whether the civil practice rules were tolled or suspended. It is important to discuss the legal meaning to each of those words, in order to understand how this may affect litigants.
“TOLLING” VERSUS “SUSPENSION”
The language in these orders have specific implications on procedural deadlines. Therefore, it is important to address the difference between the legal implications of “tolling” versus “suspending”.
If a statute of limitations is tolled, then the final number of days the orders were in place would be added to the statute of limitations period. For example: if the orders were in place for two hundred and twenty-eight (228) days, then tolling would add 228 days to the statute of limitations period, provided the statute of limitations did not expire before the issuance of the first relevant Executive Order.
If a statute of limitations is suspended, then it would stop the running of the limitations period until the relevant order expires. Thus, creating a grace period so long as the suspensions are in place. For example, if the statute of limitations period for a claim ends while the suspension is in effect, then that claim can still be filed so long as the suspension is in effect. Further, the claim must be filed before an executive order lifts the suspension. Therefore, under a suspension theory, a claim whose statute of limitations period ran out before November of 2020, must have filed their claim by end of day on November 3, 2020 (before November 4, 2020), in compliance with Executive Order 202.72, which lifted the suspension.
Based on the varying language of the Executive Orders, it is debatable on whether the Executive Orders’ plain meaning uses the term “toll” or “suspended” as it relates to statutes of limitation. The difference is significant, and could cause litigants to file lawsuits after the statute of limitation has expired. When courts are presented with this issue, they may turn to the source of Governor Cuomo’s power to issue these orders for guidance: Executive Law § 29-a.
EXECUTIVE LAW § 29-A – SOURCE OF EXECUTIVE POWER
Each of the Executive Orders explicitly references Executive Law § 29-a as the source for its authority. Executive Law § 29-a grants the Governor power to “temporarily suspend any statute, local law, ordinance, or orders, rules or regulations, or part thereof, of any agency during a state disaster emergency . . . .”
On March 3, 2020, Executive Law § 29-a was temporarily amended to include an “impending or urgent” threat of “disease outbreak” to clearly include the COVID-19 pandemic within the definition of a state disaster emergency. NY LEGIS 23 (2020), 2020 Sess. Law News of N.Y. Ch. 23 (S. 7919) (McKinney’s). This amendment also removed the requirement that the order must list the specific provision of the temporarily suspended law. The law, as amended, is in effect until April 30, 2021.
Based on the plain language of this statute, there is an argument that the Governor has the power to suspend timing provisions, but not to toll them. The word “toll” does not appear in Executive Law § 29-a or its amendment. This argument would also be supported by a separation of powers argument as well. The legislature, who is empowered to pass laws, only authorized the executive, who is empowered to enforce the laws, to modify or suspend the laws during a state disaster emergency. For an executive order to toll a statute of limitations, would expand the statute of limitations time period rather than merely suspending the period to realistically address the state disaster emergency.
The language regarding suspension or tolling clearly changed over the course of time. However, the later orders containing the blanket time extension mirror the language contained in Executive Law § 29-a. (See Exec. Order Nos. 202.48, 202.55, 202.55.1, 202.60).
JUSTICE THOMAS F. WHELAN ANALYSIS IN THE NEW YORK LAW JOURNAL
On October 6, 2020, Justice Thomas F. Whelan, a New York Supreme Court Justice, wrote an article for the New York Law Journal explaining his view that the Executive Orders acted as a suspension on procedural deadlines, not a toll. This article lays out a roadmap for judges and practitioners to show that the executive orders suspended provisions rather than tolled them.
The article distinguishes tolling and suspension. It looks at statutory construction and separation of power principles. Justice Whelan refers to recent case law, as well as case law from the aftermath of September 11, 2001 and Hurricane Sandy.
LITIGATION IMPLICATIONS
Whether the Executive Orders will be considered a toll or a suspension has yet to be decided. In fact, it may take a long time before this issue is fully settled. In the meantime, a lot of civil litigation will be affected by this uncertainty as the Executive Orders raise a number of questions. A more conservative approach would be to follow Justice Whelan’s line of reasoning—that the orders act as a suspension, not a toll. However, there is also an argument that the plain language of the orders, especially Executive Order 202.8, which initiated the modification of civil practice laws, should toll the statutes of limitation.
UPDATE ON COURT INTERPRETATION THUS FAR
It has been over a year since Governor Andrew Cuomo used his emergency powers to issue numerous executive orders in response to the COVID-19 pandemic, as discussed above.
As of the time of this update, several courts have now had the chance to confront whether Executive Order 202.8 and its subsequent extensions operated as suspensions of the civil statutes of limitations and other filing periods, or whether those executive orders operated as tolls on those filing periods. In so dealing, some of those courts have grappled with the issue of whether Executive Law §29-a in fact granted the Governor the power to toll the statute of limitations. While New York’s lower courts appear to favor the view that the executive orders operated as a toll because the Governor had the power to do so, appellate courts have yet to address, and hopefully clarify, the matter.
Interpretation in New York State Courts
On February 16, 2021, the New York Court of Claims dealt with this precise issue in a decision in Foy v. State, 2021 WL 866035 (N.Y. Ct. Cl. 2021). The Court of Claims handles all civil cases brought against the State of New York or certain State-related institutions, such as SUNY or CUNY. In Foy, a state court officer sued the State for damages related to his wrongful termination on February 18, 2020, and sought reinstatement to his position and a ruling that would void an employment stipulation he signed. The plaintiff’s claim accrued – meaning plaintiff was finally able to sue – on February 18, 2020, the date of his termination, and in the Court of Claims wrongful termination plaintiffs have 90 days from the date the claim accrues to sue. However, the plaintiff here did not sue until July 21, 2020, and did not serve this claim on the State until November 17, 2020, nearly nine months after the February 18 accrual date. In response, the State moved to dismiss the claim for being untimely filed. In non-pandemic circumstances, this claim would very clearly fall outside the statute of limitations. However, the plaintiff in Foy argued that Governor Cuomo’s Executive Order 202.8 allowed him additional time to file and serve his claim.
In Foy v. State, Judge Richard Sise agreed with the plaintiff’s argument and denied the State’s motion to dismiss. The court held that Executive Order 202.8 explicitly referenced a “toll” which in this context “suspend[ed] the running of the statute of limitations for a finite time period.” In this case, the tolling time here was the 228 days between the initial passage of Executive Order 202.8 and its final extension, and the time between the plaintiff’s claim accrual on February 18, 2020 and service on November 17, 2020 was 273 days; subtracting the tolling period (228 days) from the period of time between accrual and service (273 days) resulted in a 45-day window remaining after November 17, 2020 before the expiration of the time to serve and file the claim. Therefore, to Judge Sise, the time to serve and file a claim had clearly been tolled by the executive orders, and not suspended.
Judge Sise next turned to interpreting Executive Law § 29-a(1) to determine if Governor Cuomo did in fact have the power, based on the statute’s grant of authority to “temporarily suspend any statute” to thereby toll those statutes. Judge Sise noted that if the Governor could only suspend the timeline for accrual of claims and not toll them, then the timeline to bring claims ended on November 3, 2020, and the plaintiff in Foy had brought their claim untimely.
The Foy court interpreted the text of the Executive Orders and Executive Law §29-a(1) to have a “far-reaching application,” considering the New York legislature extended the Governor the power to alter, modify or suspend “any statute.” Based on that breadth, the Court of Claims held that the Governor was authorized to toll the statute in accordance with his power to temporarily modify or suspend any statute. Because the power to toll the statute was authorized, Judge Sise denied the State’s motion to dismiss the Plaintiff’s claims.
Compare this decision with that of the Supreme Court of New York County’s decision in Addison Plumbing LLC et al v. Maraj et al[1] on February 24, 2021. The New York Supreme Court in Addison Plumbing did not actually address whether or not Executive Order 202.8 tolled the statute of limitations or suspended it; while the Court’s language refers to “tolling,” its rationale is consistent with the definition of each term. In Addison Plumbing, Judge Nancy M. Bannon denied a plaintiffs’ motion for default judgment where the plaintiffs failed to timely file proof of service on the defendant (but did subsequently file two months after the complaint), and the defendants did not answer that complaint until November 2, 2020. The Addison Plumbing court noted that Governor Cuomo’s executive order extended “tolling” through November 3, 2020, and the defendants’ time to answer had not expired when it filed its answer on November 2, 2020. Notably, the Addison Plumbing court also held that the executive order’s effect applied equally to both the plaintiffs and the defendants’ filing timelines—with respect to the plaintiffs filing proof of service, and with respect to the defendants filing their answer.
A different judge of the Supreme Court of New York County, Judge Arlene P. Bluth, held similarly to Judge Bannon in Louis Monteleone Fibers, Ltd. v. Kejriwal Newsprint Mills LLC, 2020 WL 6801988 (N.Y. Sup. Ct. 2020). There, a defendant, moved to vacate a default judgment entered against it for failure to appear in the plaintiff’s suit for nonpayment of a paper shipment, arguing that the defendant couldn’t inspect the paper plaintiff had shipped because of the pandemic lockdown. Judge Bluth agreed with the defendant and was “unable to conceive of” the plaintiff’s interpretation of the Governor’s executive orders – that deadlines could be tolled for plaintiffs, but not defendants. Accordingly, the court vacated the default judgment against the defendant. However, and notably in this case, the defendant’s initial appearance deadline was June 23, 2020, and the defendant filed its motion to vacate the default judgment on October 27, 2020, one week before the Governor’s executive order expired. Therefore, the court did not explicitly address whether or not the executive orders effected a suspension or a toll on the statute of limitations and filing deadlines.
It is likely that divergent theories of exactly what impact Governor Cuomo’s Executive Orders have on the statute of limitations will continue to arise until one of the Appellate Divisions or the New York Court of Appeals gets a chance to interpret Executive Law 29-a(1) on appeal.
Interpretation in New York Federal Courts
Federal courts in New York, however, have been reticent to adopt the same broad reading of Executive Law §29-a(1) as the Foy court did. In Lopez-Motherway v. City of Long Beach, plaintiff brought a constitutional claim against the City of Long Beach and several officers for civil rights violations stemming from an incident in 2018. No. 20 Civ. 5652 (BMC), 2021 WL 965158 (E.D.N.Y. 2021). The plaintiff alleged excessive use of force and false arrest against the relevant officers, and additionally brought several state law claims. The plaintiff was initially prosecuted in the City Court of Long Beach, but in July 2019, the City handed the prosecution to the Nassau County District Attorney’s Office, which dismissed the charges entirely. The plaintiff brought her civil rights suit on November 20, 2020, over a year and a half after her case was dismissed; with respect to the plaintiff’s state law claims, the City argued that the statute of limitations had run on a claim that could have accrued no later than July 31, 2020, and that the claims must be dismissed.
The Lopez-Motherway court noted that the state law claim for malicious prosecution had a statute of limitations of one year and ninety days from the date the action accrued, which would have expired in normal circumstances on October 29, 2020. Taking heed of Executive Order 202.8’s language, the court observed the discrepancy between the subsequent orders’ interchangeable use of the word “suspension” and “tolling”. In this case, similarly to the Foy case, the plaintiff’s claim would survive or fail depending on whether or not the statute was ruled suspended or tolled. Similar to the Foy court, the Court in Lopez-Motherway held that Executive Order clearly intended to toll the statute of limitations because of it’s explicit “tolling” language rather than “suspended” language. However, in contrast to the Foy court, rather than decide whether Executive Law §29-a(1) authorized the Governor to so toll the statute of limitations, the Court instead declined to hear the claim based on principles of supplemental jurisdiction; essentially, Judge Brian Cogan noted that this particular issue had not yet been litigated by New York State courts, and chose to avoid ruling on the issue to permit New York State courts to have the first say with respect to the interpretive issue.
Other judges in the Eastern District of New York appear equally willing to read Executive Order 202.8 as a tolling statute. On November 12, 2020, in Bonilla v. City of New York[2], Judge Raymond Dearie affirmed Magistrate Judge Lois Bloom’s order to permit the plaintiff in a different civil rights case to amend his complaint, despite the amendment being filed on October 4, 2020 (the day Executive Order 202.8 was set to expire, and before the order extending that tolling order to November 4, 2020 was enacted). The defendant in Bonilla argued that Executive Order 202.8 was not a “tolling rule” that could toll the statute of limitations for §1983 claims, and that therefore the plaintiff’s amendment was untimely because the statute of limitations had expired on April 18, 2020. In rejecting this argument, Judge Dearie acknowledged that a higher court had not yet addressed whether the executive order was in fact a state tolling rule with respect to federal courts hearing §1983 civil rights claims,[3] and took notice that a Southern District court had recently concluded that the Executive Order should be considered a tolling rule for purposes of tolling federal statutes of limitations.[4] The Bonilla court ultimately concluded that the executive order in this context had in fact operated as a toll sufficient to render the plaintiff’s amendment to the complaint timely.
Multiple judges in New York federal courts appear to view Executive Order 202.8 and its extensions as a clear tolling order as opposed to a suspension of the statute, and are merely waiting on such an interpretation from New York State’s Appellate Divisions or Court of Appeals before endorsing that position.
Governor Cuomo’s Emergency Powers Limited
On March 5, 2021, the New York state legislature voted to ‘strip’ Governor Cuomo of the emergency powers it conferred on the Governor in March of 2020 to deal with the pandemic. Under this new bill, the Governor cannot enact new executive orders related to the pandemic without the state legislature’s approval. The bill further permitted the Governor’s current executive orders to remain in effect for thirty days. The legislature cited a number of reasons for this limitation of the Governor’s pandemic-related emergency powers; namely, the Governors’ misreporting of pandemic-related deaths in state nursing homes, the ongoing investigation into Governor Cuomo’s alleged sexual misconduct, and the perceived wind-down of the pandemic and the increasing re-opening of businesses across the state.
The language of the bill did not address whether the Governor’s pandemic emergency powers granted him the ability to toll the statute of limitations or similarly delay certain court deadlines. Instead, the bill acknowledged the original state of emergency had been declared to address an “unknown and unprecedented problem, and in case the governor needed additional powers to deal with the quickly evolving situation,” and then declared its intent to “restore the pre-pandemic balance of power of the governor and the legislature.”[5] To do so, the legislature instituted the thirty-day expiration period and required legislative review of new executive orders before they can take effect.
While this bill does not specifically answer whether or not the Legislature originally empowered the Governor to toll the statute of limitations or other court filing deadlines, this broad stripping of power could suggest that the Governor did in fact have the power to toll those filing deadlines as a part of the extremely broad additional powers granted to Governor Cuomo pursuant to the state of emergency; an understanding that judges in New York’s federal courts and some of its state courts so far appear to share.
CONCLUSION
Ultimately, the COVID-19 pandemic highlighted, among other things, difficulties surrounding timely filing of and defending against lawsuits; especially considering the more limited function of the courts. Best practice is to consult an attorney when considering any claims, defenses, and deadlines if you are a party to an action.
[1] Addison Plumbing LLC et al v. Maraj et al, No. 615309/2020, 2021 WL 1049452 (N.Y. Sup. 2021).
[2] Bonilla v. City of New York, 2020 WL 6637214 (E.D.N.Y. 2020).
[3] Federal courts apply the relevant state court statute of limitations for state personal injury cases to federal § 1983 claims.
[4] See Citi Connect, LLC v. Loc. Union No. 3, Int’l Bhd. Of Elec. Workers, AFL-CIO, 2020 WL 5940143 (S.D.N.Y. Oct. 7, 2020) (holding that, in the context of a claim that could have been filed in either a federal or state court, that a claim filed in federal court could apply the New York state statute of limitations—which in this context had been “arguably, tolled”—where that claim had no federal statute of limitations).
[5] NY LEGIS 71 (2021), 2021 Sess. Law News of N.Y. Ch. 71 (S. 5357) (McKINNEY’S).
Photo by Sebastian Pichler on Unsplash
