First, Second and Third Departments All Hold That COVID Executive Orders Tolled NY’s Statutes of Limitations

Only weeks ago, the Appellate Division, Second Department issued its McLaughlin decision reaffirming Brash[1] – another Second Department decision which we wrote about on August 4, 2021.[2] As we discussed in our blurb, Brash was significant. Therein, the Second Department held that Governor Cuomo’s Executive Orders during the COVID-19 pandemic “tolled,” rather than “suspended,” New York’s statutes of limitations.[3]

The “toll” versus “suspension” distinction is critical. A “toll” extends a limitations period while a “suspension” is a period in which a claim cannot become untimely. The following example illustrates the nuance. A contract cause of action that accrued on June 1, 2014, would normally have to be interposed on or before June 2, 2020 (six years later). If there was a law in 2015 that tolled the statute of limitations for three months, the same cause of action would be timely until September 2, 2020 (six years plus three months).

Conversely, take the same hypothetical from a “suspension” perspective. If there was a 3-month suspension of the statute of limitations in 2015, say from October to December, the same contract cause of action would be unaffected since it does not become untimely during that suspension window. As such, that contract cause of action would still be governed by the six-year statute of limitations and would have to be interposed on or before June 2, 2020.

Because Brash held that the Executive Orders tolled, rather than suspended, New York’s statutes of limitations, the limitations periods were extended 228 days for plaintiffs to interpose their claims.[4] Not knowing Brash’s future at the time, we concluded our August 4, 2021, article by cautioning that other Departments of the Appellate Division could disagree with Brash or Brash could be reversed or modified by the New York Court of Appeals.

The jury is still out on the latter, but we can confidently report that Brash has been further cemented into New York law by a majority of the other Departments and the Second Department’s aforementioned McLaughlin decision. In July 2022, the Third Department issued its decision in Roach agreeing with Brash[5] and, between November and December 2022, the First Department issued a trio of decisions also upholding Brash: Murphy, Gabin, and New York City Transit Authority.[6] Therefore, the First, Second, and Third Departments are presently in accord that the COVID Executive Orders tolled, and did not suspend, New York’s statutes of limitations.

This is good news for plaintiffs whose claims’ timeliness relies on the Executive Orders’ tolling of the statutes of limitations. It now appears that the only potentials for defendants to skirt the toll lie with the Fourth Department and the New York Court of Appeals, both of which have been silent on the issue thus far. When those forums have weighed in, we will report back. Stay tuned.

[1] McLaughlin v. Snowlift Inc., 2023 WL 2396118 (2d Dep’t 2023).

[2] See https://www.rivkinradler.com/publications/update-gov-cuomos-executive-orders-tolled-nys-limitation-periods/.

[3] Brash v. Richards, 195 A.D.3d 582 (2d Dep’t 2021).

[4] See, e.g., Christian v. Zhang, 75 Misc. 3d 1204(A) (Sup. Ct., Bronx County 2022); Payne v. King Neptunes NY, LLC, 73 Misc. 3d 1210(A) (Sup. Ct., Warren County 2021).

[5] Roach v. Cornell Univ., 207 A.D.3d 931, 933 (3d Dep’t 2022) (quoting Brash, 195 A.D. at 585) (internal citations omitted).

[6] Murphy v. Harris, 210 A.D.3d 410, 411 (1st Dep’t 2022); Gabin v. Greenwich House, Inc., 210 A.D.3d 497, 498 (1st Dep’t 2022); New York City Transit Auth. v. Am. Transit Ins. Co., 211 A.D.3d 643, 643 (1st Dep’t 2022).