25 November 2021 - Article
On March 20, 2020, Governor Cuomo issued Executive Order 202.8, tolling New York’s statute of limitations and other procedural deadlines from March 20, 2020 through 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.
Thereafter, the Governor repeatedly extended, for 30-day periods, the civil tolling in Executive Order (“EO”) 202.8 by issuing various EOs, including the most recent one, EO 202.55, issued on August 5, 2020, which extended these provisions, as applicable to civil matters, to September 4, 2020.
Although a primary focus of EO 202.8, as extended, is the statute of limitations, EO 202.8 also tolls deadlines to file motions and to perform litigation milestones, including serving process and notices of appeal.
Analysts have taken conflicting views on the scope of which additional deadlines are tolled, with some asserting that EO 202.8 should be read narrowly and others arguing that is a blanket toll on all procedural deadlines. See Cumulative Supplement to Siegel, N.Y. Prac. § 33 (6th ed.) (EO 202.8 should be limited to its literal meaning – for example, although EO 202.8 tolls the time to serve a notice of appearance or a notice of motion to dismiss, it does not toll the time to serve an answer). But see, article here. (EO 202.8 “[t]emporarily tolls all New York state court procedural deadlines including statutes of limitation”); accord article here (“As a procedural matter, all time periods to file or respond to complaints, motions, discovery or other applications are tolled at least until April 19, 2020.”); article here (“Accordingly, the executive order should be interpreted to toll any deadlines in any particular court’s scheduling orders for the period prescribed by the executive order.”)
An even more pressing debate is whether EO 202.8, as extended, operates as a true toll (i.e., time does not run during the tolling period, and all effected deadlines are delayed by 168 days), or whether it merely suspends deadlines until the EO expires (i.e., all deadlines which fall between April 19, 2020 and September 4, 2020 are extended to the next business day, and all deadlines which fall on or after September 5, 2020 are not extended).
The majority view among analysts (including the view of the generally authoritative New York Practice, as set forth in the Cumulative Supplement) is that the word “toll” in EO 202.8 means what it says, and EO 202.8 will truly toll any deadlines it affects. Notably, after Hurricane Sandy, Governor Cuomo issued an executive order “suspending” the statute of limitations, but in this case, he issued an executive order “tolling” it. These two words have different legal meanings, and future courts should presume that the change of language was a deliberate and intentional effort to create a toll, not a mere suspension.
If this view is correct and upheld by the courts, the effects of the toll will linger for years. For example, a contract claim which accrued on March 1, 2020, and would therefore expire on March 1, 2026, will now be extended by (at least) 168 days. Analysts have questioned whether Governor Cuomo may use executive orders to effect deadlines that fall long after the pandemic is over. For this reason, the New York City Bar Association sent a letter, dated April 16, 2020, to the Governor seeking clarification on how EO 202.8 is intended to operate both with respect to deadlines that fall during its pendency and with respect to deadlines that expire years later. See article here. However, no response from the Governor is reported on the New York City Bar Association website.
Although EO 202.8 remains in effect, New York State courts are now working to move civil cases forward. Initially, on March 22, 2020, New York Chief Administrative Judge had issued an order prohibiting all electronic and paper filings in any new or existing case, except for essential matters. Since that time, however, New York courts began re-opening, and by May 25, 2020 all restrictions on electronic filings had been lifted. The Chief Administrative Judge has been encouraging courts (and litigants) to move cases forward, using remote technology for settlement, case conferences, and hearings. Recently, the courts began moving towards restarting in-person jury trials.
As the effects of the pandemic in New York ease, and as judges, their staffs, clients, and attorneys grow more adept at remote proceedings, New York courts are now issuing scheduling orders, setting new deadlines to move cases forward. Likewise, all four appellate divisions have lifted their stays of proceedings, issued new deadlines for perfecting appeals and other filings, and opened up remote (and recently some in-person) oral arguments. Clearly, these courts expect these new deadlines to be honored, notwithstanding the broad view taken by some analysts that EO 202.8 (as extended) tolls all procedural deadlines in all civil matters.
All of this uncertainty is exacerbated by the uncertainty over how many more times (if any) the Governor will extend EO 202.8. Indeed, if Governor Cuomo’s office does not clarify the issues raised by the New York City Bar Association, or extend EO 202.8 further on September 4, 2020, then September 5, 2020 might see the start of a mad scramble by some lawyers to meet deadlines that have elapsed during the prior 168 days, out of concern that EO 202.8 will be read by later courts as a mere suspension, notwithstanding its plain language. This, ironically, may lead attorneys, staff, and clients to use public transportation, go into offices, meet with each other in person, and take other steps to avoid risking procedural default. It will also risk inundating the courts with a rush of filings, at a time when courts are still striving to return to some semblance of normalcy. All of this will be made worse by the fact that new EOs are generally released on the Governor’s website well after close-of-business, so it may be unclear until after midnight on September 4, 2020 whether EO 202.8 will be further extended.
Thus, ironically, the perceived ambiguity in EO 202.8, together with the uncertainty of whether it will be extended, could lead to some of the same lack-of-social-distancing conduct it was meant to avoid. Obviously, the general risk in New York is smaller now than it was in March 2020, but nevertheless, the Governor – when he finally determines not to extend 202.8 any further – can and should take certain steps to ensure that deadlines are re-imposed in an orderly manner, with sufficient advance notice to the bar.
At the very least, the Governor’s staff can issue the executive orders in the morning, giving the bar at least one extra day. However, it would be wiser for the Governor to give the bar at least a week’s warning when he determines that he will not further extend EO 202.8.
An ideal solution would be for the Governor to issue a final executive order clarifying and modifying 202.8 with sufficient lead time to allow attorneys to satisfy the new deadlines while maintaining social distancing, remote work, and other best health-and-safety practices. The schedules issued by the Appellate Divisions, setting new staggered deadlines with sufficient advance lead time, could be effective models. For example, the Governor can issue an order on September 4, 2020 which states that any effected deadline which fell between March 20, 2020 and September 4, 2020 is tolled for the full 168 day, but any deadline that falls after September 4, 2020 will get a progressively shorter toll, so that due dates can be staggered, while allowing the delaying effect of EO 202.8 to end by April or May 2021.
Tolling the statute of limitations and other procedural deadlines was a necessary and important step in March 2020. However, the language of EO 202.8 led to uncertainty about its interpretation. The Governor should clarify EO 202.8, as requested on April 16, 2020 by the New York City Bar Association, and he should ensure that when he determines it is time to re-impose civil deadlines, he does so with reasonable advance notice to attorneys and parties.