Coronavirus and Statutes of Limitations in New York: A Lingering Effect?

April 14, 2020 | Michael C. Mulè | Kenneth C. Murphy | Commercial Litigation

We’ve all heard the COVID-19 pandemic described as “unprecedented.” Governor Cuomo’s Executive Order 202.8 and its treatment of time limitations (including statutes of limitations), may also be unprecedented.

Executive Order 202.8 was issued on March 20, 2020. It states that “any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding … is hereby tolled from the date of this executive order through April 19, 2020.” Executive Order 202.18 extends those provisions until May 15, 2020.

This Executive Order is not like those issued after 9/11 or Hurricane Sandy.  In those emergencies, Governors Pataki and Cuomo, respectively, “temporarily suspend[ed]” CPLR 201.  See Executive Order No. 113.7 of Governor Pataki and Executive Order No. 52 of Governor Cuomo.  CPLR 201 states that “[a]n action … must be commenced within the time specified in this article unless a different time is prescribed by law or a shorter time is prescribed by written agreement.” The case law interpreting those prior executive orders found that they did not operate as a “blanket toll.” See, e.g., Scheja v. Sosa, 4 A.D.3d 410 (2d Dep’t 2004); Williams v MTA Bus Co., 44 Misc 3d 673, 684, 989 N.Y.S.2d 806, 816 (Sup Ct. NY Cty 2014); Ma Ja Song v. New York City Transit Authority, 2014 N.Y. Slip Op. 50442(U) (Sup Ct. NY Cty Mr. 24, 2014). Those courts found that the suspension provided relief for those actions whose limitation period would have ended during the time period when CPLR 201 was suspended. Thus, if, and only if, the ordinary limitation period would have ended during the suspension period, a party would have relief from the ordinary limitation period by taking appropriate action on the date when the suspension period ended. Limitation periods were otherwise unaffected.

Executive Order 202.8 is different. It purports to act as a “toll” which, the Supreme Court has held “means to hold it in abeyance, i.e., to stop the clock.” Artis v District of Columbia, 138 S. Ct 594, 598 (2018). If Executive Order 202.8 is upheld and interpreted so as to “stop the clock” as to time limitations, it may have general applicability to causes of action, notices, motions, or other processes or proceedings. So, for example, a contract cause of action with a six-year statute of limitation that accrued on March 19, 2020, normally would have to be commenced in New York within six years (i.e., by March 18, 2026). Now, that cause of action, arguably, will get an extension of no less than 56 days (March 20, 2020 to May 15, 2020 being excluded from the limitation period) making the new deadline May 14, 2026.

If this is the ultimate effect of Executive Order 202.8, as to executive orders issued over the past twenty years in New York, it would be unprecedented.

This post was updated on April 20, 2020.

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