Due to the existence of a state disaster emergency as a result of transmission of COVID-19, the Governor has tolled statutes of limitations for state law causes of action from March 20, 2020 until April 19, 2020 (30 days). Although the Executive Order plainly applies to more than just statutes of limitation, this legal alert is focused exclusively upon its impact on statutes of limitation for state law causes of action. Executive Order No. 202.8 states in pertinent part:
“any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as described 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.”
This Executive Order could be interpreted as broadly extending the limitations periods on all causes of action accrued and accruing before April 19. However, it could also be interpreted more narrowly as providing only a grace period until April 19 to file claims which would otherwise expire between March 20 and April 19. Given the uncertainty, a reasonably cautious approach would be, to the extent possible, to timely file claims, without relying on the apparent toll.
Read broadly, the Executive Order appears to toll any and all causes of action that accrue before April 19, 2020 by either 30 days or the number of days between accrual of the action and April 19, whichever is shortest. A few hypothetical scenarios illustrate how this broad interpretation would likely work:
- Scenario A: a limitations period set to expire any time after issuance of the March 20, 2020 Executive Order would extend by 30 days. For instance, a May 1, 2020 deadline would extend to May 31, 2020. A May 1, 2022 deadline would extend to May 31, 2022. And a March 31, 2020 deadline would extend to April 30, 2020.
- Scenario B: a limitations period which began running sometime between issuance of the March 20, 2020 Executive Order and April 19, 2020 would extend only by the number of days between accrual of the cause of action and April 19. For instance, the limitations period on a cause of action which accrues on March 31, 2020 would extend by only 19 days.
The use of the word “tolling” in the Executive Order seems to support this broad interpretation (see Borelli v Rochester Transit Corp., 285 AD 230, 235 [3d Dept 1954] [holding that a treaty provision, which provided that all periods of prescription affecting the rights of Italian nationals unable to protect their rights because of the war shall be regarded as suspended for the duration of the war, operated as a “stay” and “toll” of the running of all periods of limitation, thus extending the limitations periods during which affected Italian nationals to file suit]; see also Black’s Law Dictionary [defining “toll” as “to stop the running of”]).
However, the Executive Order could also be interpreted much more narrowly: as merely suspending until April 19 the application of the statute of limitations to bar claims. In other words, under this narrow interpretation, any action for which the limitations period would expire between March 20 and April 19 would be extended until April 19, and thereafter all claims must be timely filed without the benefit of a toll. This is exactly the way courts interpreted Executive Orders on limitations periods issued following the September 11, 2001 attacks and Hurricane Sandy (see Scheja v Sosa, 4 AD3d 410, 411 [2d Dept 2004]; see also Koebel v New York State Comptroller, 66 AD3d 1307, 1309 [3d Dept 2009] [following the Second Department’s holding in Scheja]; Williams v MTA Bus Co., 44 Misc. 3d 673, 685 [Sup Ct New York County 2014]).
True, the Executive Orders issued after September 11 and Hurricane Sandy were phrased quite differently than Executive Order 202.8, and might therefore be deemed distinguishable. Governor Pataki’s Executive Orders after September 11 (Nos. 113.7 and 113.28) did not use the word “toll”; instead, they “temporarily suspend[ed], from the date the disaster emergency was declared . . . until [November 8, 2001] . . . Section 201 of the Civil Practice Law and Rules, so far as it bars actions whose limitation period concludes during the period commencing from the date that the disaster emergency was declared . . . until further notice . . . .” The Appellate Division interpreted this language as providing a grace period until November 8, 2001 to file actions that otherwise would have been time-barred due to the statute of limitations expiring during the state of emergency (Scheja, 4 AD3d at 411-12). In so doing, the Appellate Division rejected the plaintiff’s argument that “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” (id.). Following Hurricane Sandy, Governor Cuomo issued an Executive Order (No. 52) almost identical to the ones issued by Governor Pataki after September 11, and that Executive Order was interpreted in the same way (see Williams, 44 Misc 3d at 685 [noting that the order “may not be read as enacting a ‘blanket toll,’ in the sense that it suspended the running of all limitations period” because it clearly stated that it applied only to “actions whose limitation period concludes during the [pertinent] period”], opinion vacated in part on reargument on other grounds).
As noted above, the language in Governor Cuomo’s current Executive Order issued in the wake of COVID-19 seems far broader than both the Executive Orders issued by Governor Pataki in the wake of September 11 and the Executive Order issued by Governor Cuomo himself in the wake of Hurricane Sandy. The current Executive Order, unlike the prior Executive Orders, by its terms seems to impose a blanket “toll” on all time limitations.
Yet the Governor might actually lack authority to impose a blanket toll. The source of the Governor’s power is 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, if compliance with such provisions would prevent, hinder, or delay action necessary to cope with the disaster . . . .” (Executive Law § 29-a[1]). The statute limits the Governor’s authority to suspend statutes as follows: “no suspension or directive shall be made for a period in excess of thirty days, provided, however, that upon reconsideration of all of the relevant facts and circumstances, the governor may extend the suspension for additional periods not to exceed thirty days each” (Executive Law § 29-a[2][a]); any suspension “shall be effective from the time and in the manner prescribed in such orders” (Executive Law § 29–a [3][b]); “the order may provide for such suspension only under particular circumstances, and may provide for the alteration or modification of the requirements of such statute, local law, ordinance, order, rule or regulation suspended, and may include other terms and conditions” (Executive Law § 29-a[2][d]); and “any such suspension order or directive shall 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” (Executive Law § 29-a[2][e]). Whether these provisions grant the Governor authority to toll all statutes of limitation during the emergency situation, resulting in additional time tacked onto all causes of action accruing before April 19, is unclear.
Given the difficulty of interpreting the language of the Executive Order and the uncertainty surrounding the scope of the Governor’s authority to impose a blanket toll on statutes of limitation, litigators and litigants should consider taking a cautious approach.
