09 June 2020

Update: Tolling of New York State statutes of limitations extended


Chaya F. Weinberg-Brodt
Special counsel | US

On March 20, 2020, Governor Cuomo issued Executive Order 202.8, which (in relevant part) expressly tolled all New York State limitation periods from March 20, 2020 to April 19, 2020:

  • . . . [A]ny 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 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 of this executive order until April 19, 2020.

On March 22, 2020, New York’s Chief Administrative Judge issued an order prohibiting physically or electronically filing any new nonessential cases, and did so based on the Governor’s Executive Order 202.8.

Thereafter, on April 7, 2020, the Governor issued Executive Order 202.14, which extended the provisions of Executive Order 202.8 to May 7, 2020. On May 7, 2020, the Governor issued Executive Order 202.28 which extended these provisions to June 6, 2020.

In May 2020, the New York State Courts began allowing parties in certain counties to file new, non-essential cases. By May 25, 2020, the New York State Courts were open for new, non-essential case filings state-wide, leading to some speculation – and concern – that Executive Order 202.08 might not be extended further.

However, on June 6, 2020, the Governor issued Executive Order 202.38, further tolling all state statutes of limitations until July 6, 2020. Whether he will issue a further order remains to be seen and will likely depend on the success of the phased reopening of New York State.

In addition, questions have been raised as to whether these executive orders, which have cumulatively tolled New York limitation periods for 108 days, are mere “suspensions” (i.e., grace periods), or true “tolls.”

If these executive orders are mere “suspensions,” then the limitations period for any claim which expired between March 20, 2020 and July 6, 2020 would be extended until July 6, 2020, and could be filed on or before that date. That could lead to a massive number of filings on July 6, 2020, and may negatively impact certain parties and attorneys who are not yet cleared for in-office work, and/or who are otherwise still directly impacted by COVID-19. However, because courts have been open for new filings since May 25, 2020, and because most attorneys have been able to adapt to remote work, the latest extension (until July 6, 2020) should substantially alleviate many of these concerns.

If the executive orders amount to a true toll, then the limitations period for any claim which accrued before March 20, 2020 is extended for 108 days. For example, if a breach of contract claims accrued on May 1, 2014, and needed to be filed on May 1, 2020, this date is extended by 108 days, and the claim must be filed on or before August 17, 2020. Likewise, if a breach of contract claim accrued on February 1, 2020, and needs to be filed on February 1, 2026, a true toll would (arguably needlessly) also extend this date by another 108 days. Any state-law claim that accrues during the 108-day tolling period would be tolled by the number of days that exist between the date the claim accrued and July 6, 2020.

Executive Order 202.8 differs from prior New York executive orders, which suspended the operation of statutes of limitations during the emergency (for example in the aftermaths of 9/11 and Hurricane Sandy). In both of those emergencies (unlike this one), the resulting executive orders expressly “suspended” the application of the statute of limitations, rather than tolling the limitations period.

For example, on October 26, 2012, in the aftermath of Hurricane Sandy, Governor Cuomo issued Executive Order 52, which stated, in relevant part, “I hereby temporarily suspend, for the period from the date of this Executive Order until further notice . . . . Section 201 of the Civil Practice Law and Rules, so far as it bars actions whose limitation period concludes during the [declared state of emergency].” This language mirrored the language used by his predecessor, Governor Pataki, in issuing his executive orders in the aftermath of 9/11.

In Scheja v. Sosa, 4 A.D.3d 410, 411 (2d Dept. 2004), the Second Department ruled that the post-9/11 executive orders suspended, but did not toll, the statutes of limitations. See id. (“The plain meaning of these Executive Orders is that any litigant who was affected by the World Trade Center attacks and whose statute of limitations period expired between September 11, 2001 and November 8, 2001, was given a grace period of up until November 8, 2001, to satisfy the statute.”).

However, with respect to COVID-19, Governor Cuomo used different language in Executive Order 202.08 expressly stating that limitations periods were tolled, not suspended. Because Governor Cuomo had previously issued the 2012 Hurricane Sandy Order, it might be presumed (by future courts) that his change of language was deliberate, and that he intended a true toll, not merely a grace period, although the far-reaching implications of this toll may not have been considered.

This broad interpretation (even if correct as to the Governor’s intent) will almost certainly be challenged by future litigants, as beyond the scope of normal emergency suspensions of limitations. Likewise, a true toll (whose effect extends years into the future) might later be challenged as going beyond the Governor’s constitutional and recently-expanded statutory emergency powers (see New York Executive Law 29-a, effective March 3, 2020 to April 30, 2020), which currently permit him to suspend statutes and issue directives, but only to the extent such directives are “necessary to cope with the disaster,” and any suspensions are “reasonably necessary to aid the disaster effort,” and “provide for the minimum deviation from the requirements of the statute, local law, ordinance, order, rule or regulation suspended consistent with the goals of the disaster action deemed necessary.” See Executive Law 29-a(1); 29-a(2)(b); and 29-a(2)(e). See also Scheja, 4 A.D.3d at 411-12 (questioning an interpretation that would continue to extend the statute of limitations well after any emergency was over):

  • The plaintiff urges an extraordinary interpretation of the Governor’s Executive Orders as a tolling provision. According to his argument, any litigant who was affected by the disaster emergency could have their period of limitations tolled for the number of days from September 11, 2001, to November 8, 2001, no matter when the statute of limitations expired. This could not have been the intent of the Governor’s Executive Orders. The state of emergency caused by the attacks on September 11, 2001, no longer existed at the time the plaintiff was required to commence his action in February 2002 and thus could not have interfered with his ability to meet the statute of limitations.
Chaya F. Weinberg-Brodt Special counsel | New York

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