New York’s Appellate Division, Second Department recently denied two motions arguing an appeal was untimely where the appellant filed a notice of appeal nine days beyond the standard deadline. The appellant successfully argued New York Governor Andrew Cuomo’s pandemic-induced Executive Orders tolled the deadline. This made the appeal timely. Brasch v. Richards, — AD3d —, 2021 NY Slip Op 03436 (2d Dept. 2021).

The serious implications of deadline tolls versus suspensions has produced riveting debate among New York attorneys. Critically, the Appellate Division distinguished the terms:

• Toll: suspends the running of the applicable period of limitation for a finite time period and the period of the toll is excluded from the calculation;
• Suspension: does not exclude its effective duration from the calculation of the relevant time period but, rather, simply delays the expiration of the time period until the suspension’s end date.

Normally, a party must file a notice of appeal within 30 days after receiving a copy of an order and written notice of its entry. However, relying on New York’s Executive Law, Governor Cuomo issued a host of Executive Orders that modified many laws in response to the pandemic. Executive Order No. 202.8, a sweeping and often-cited order, expressly tolled time limits for the filing or service of any legal action, notice, motion, or other process. This included time limits in the Civil Practice Law and Rules, which govern New York appellate practice.

Later Executive Orders continued the prior modifications. But not every Executive Order used “toll” and some included derivatives of “suspension.” These inconsistencies opened the door for the respondents and commentators to argue the modifications of law were suspensions, not tolls. But Executive Orders 202.67 and 202.72 drove home the court’s holding by expressly using “toll” and providing a precise end date: Nov. 4, 2020.

The respondents argued that the governor did not have the legal authority to toll any time limits. The Appellate Division rejected that position and noted the rather extensive Executive Law § 29-a did not limit the governor to merely suspending laws. Rather, he could lawfully alter or modify laws and broadly include other unspecified terms and conditions. Tolling deadlines fell within that definition.

Counsel and litigants alike in New York would be well-advised to pay close attention to deadlines that accrued after March 20, 2020. Procrastination pales in comparison to swift and punctual action and filings, particularly in the case of any doubt and especially in view of the potentially disastrous consequences in play.

Read the full decision here.