Back on March 7th, Gov. Cuomo declared an emergency in New York due to then COVID-19 pandemic. And with that, issued a tsunami of Executive Orders.
One of those orders tolled the statute of limitations (Executive Order 202.8) effective to March 20th. That tolling was widespread for a number of different areas, inclusive of all civil cases, and included:
any specific time limit for the commencement, filing, or service o f any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws ofthe 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 ofthis executive order until April 19, 2020
I wrote about the need for this on March 16th, and the Cuomo signed the order on March 20th. Yeah, I’d like to claim credit, but I’m no fool. The need was obvious.
Thereafter, every 30 days Cuomo extended the toll (or is it merely a suspension? See update) another 30 days.
The courts were closed. Lawyers and clients alike were sheltering in place, and to this day some lawyers still have not gone into their offices, which are now just very high-priced storage facilities.
For the non-lawyers that may be reading, a toll means an effective freeze. If there was 60 days left on the statute of limitations to sue on a car collision, you would still get that 60 days when the toll was lifted. If you slipped and fell on ice in a ;parking lot in the middle of July while the tolling was in place, the statute of limitations would not start to run until the toll was lifted.
But now the toll (if it is a toll, see the update) is being lifted for civil cases, as noted in the subject heading. It ends on November 3rd (Election Day) as per Executive Order 202.67, 228 days after it started.
So, a practitioners note, if a client has a matter that needed to be put into suit, and you were dilly-dallying because of the tolling, dilly-dally no longer.
And if you continue to dilly-dally, make sure your professional liability premiums are paid up, if you get my drift.
And as for the non-lawyers, the potential clients who want to make personal injury claims, yet waited and waited and waited until the statute of limitations was about to expire, don’t be surprised if lawyers won’t let you in the door. See #10 of 10 Signs The New Matter is a Dog (Before you even consider the merits).
Update: In the New York Law Journal, Justice Thomas Whelan (Supreme Court, Suffolk County) argues that the courts may not view this as a tolling of the statute of limitations, but as a suspension, thereby creating a trap for the unwary. There are, obviously, no cases on this yet as the Executive Orders won’t expire until November 3rd:
While a toll stops the running of the limitation period, with a tacked-on time period, a suspension of the statute of limitations would provide for a grace period until the conclusion of the last suspension directive in the latest executive order, a significantly shorter time period.
The basis of the argument is that, while the original EO specifically said the statutes of limitations were “tolled,” the seven subsequent orders that extended it state that they “temporarily suspend or modify any statute, local law, ordinance, order, rule, or regulation, or part thereof, …”
Thus, “tolling” in the original and “suspension” in the follow-ups.
Each of the orders cites as its authority Executive Law §29-a, which permits the governor to “temporarily suspend any statute, local law, ordinance, or orders, rules or regulations, or parts thereof, of any agency during a state disaster emergency…” It does not use the word toll.
If it is a suspension, as Justice Whelan argues, then you don’t tack on to the end of the statutory period the number of days in the toll. You simply get a grace period until the end of the suspension if your time would otherwise expire, and that means a flood of filings between now and when it ends.
The essence of the issue is this: Did Gov. Cuomo exceed his authority under Exec Law 29-a by creating a toll, when only a suspension was authorized by the Legislature? And what of the litigants that relied on the Governor’s use of the word “tolling?”
The bottom line, in the words of the late Prof David Siegel, Grand Guru of all that is New York’s civil practice law and rules: You don’t want to be the test case. File your damn papers now.