Update: Gov. Cuomo’s Executive Orders Tolled NY’s Limitation Periods

In April 2020, in an article entitled, “Coronavirus and Statutes of Limitations in New York: A Lingering Effect?”, we discussed Governor Cuomo’s Executive Order 202.8, issued in the first year of the Covid-19 pandemic. We opined that, based on its language, it served to “toll,” rather than “suspend,” New York’s limitation periods.[1]

On June 2, 2021, the Appellate Division, Second Department, issued a decision wherein the Court agreed with our opinion and held that the Executive Orders, in fact, tolled, as opposed to suspended, time limitations in New York.[2] The Brash decision follows the majority of New York’s trial courts which held the same.[3] There appears to be only one New York trial court that has held otherwise, and treated the Executive Orders as suspending New York’s statutes of limitations.[4] However, that decision was effectively overturned by the Brash decision.

The Brash decision may be imperative for parties in, or facing, litigation. As we pointed out in our previous article, and as discussed in the Brash decision, the distinction as to whether the Executive Orders tolled or suspended time limitations in New York is critical. As a toll, the Executive Orders would essentially “stop the clock,” and extend the timeliness of a claim by 228 days (the total amount of days which the Executive Orders were effective). For example, a contract cause of action that accrued on March 19, 2020, would normally have to be interposed by March 18, 2026, because contract causes of action are subject to a six-year statute of limitations. However, utilizing Governor Cuomo’s Executive Orders as a toll, that same claim would now be timely until November 1, 2026.

Conversely, treating Governor Cuomo’s Executive Order as a mere suspension of New York’s statutes of limitations would have a different result and it would benefit only those actions whose limitations period ended during the 228 days during which the Executive Orders were effective. In that circumstance, to be timely, a party whose claim that originally became untimely during the 228 days during which the Executive Orders were effective would have to interpose its claim by November 3, 2020, the day the Executive Orders expired. All other claims would be unaffected.

Therefore, at this point, unless another Department of the Appellate Division or the New York Court of Appeals finds otherwise, claims will have an additional 228 days within which to be timely interposed.

[1] Since then, Executive Order 202.8 was extended by Executive Orders 202.14, 202.28, 202.38, 202.48, 202.55.1, 202.60, and 202.67. In total, the Executive Orders were effective for 228 days, from March 20, 2020 until November 3, 2020. See McLaughlin v. Snowlift Inc., 71 Misc. 3d 1226(A) (Sup. Ct., Kings County 2021) (calculating that, together, the Executive Orders lasted 228 days). In addition, over the past year plus, several courts have elucidated whether the Executive Orders “tolled” or “suspended” New York’s statutes of limitations for 228 days.

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

[3] See, e.g., Bastell v. Vill. of Rye Brook, 71 Misc. 3d 1216(A) (Sup. Ct., Westchester County 2021); Matter of 701 River St. Assocs. LLC, 72 Misc. 3d 302 (Sup. Ct., Rensselaer County 2021); Foy v. State, 71 Misc. 3d 605 (Ct. Cl. 2021); Matter of M.R., 69 Misc. 3d 368, 375 (Fam. Ct., Kings County 2020).

[4] See McLaughlin v. Snowlift Inc., 71 Misc. 3d 1226(A) (Sup. Ct., Kings County 2021).