During the COVID-19-related tolling of the statute of limitations, there has been uncertainty over how to interpret the executive orders.
On November 3, 2020, New York Governor Andrew M. Cuomo issued Executive Order 202.72. Consistent with his prior Executive Order 202.67 dated October 4, 2020, the tolling of the statute of limitations that first went into effect on March 20, 2020, via Executive Order 202.8 has now ended for any civil cases governed by New York’s statute of limitations.
The latest Executive Order states in relevant part:
Pursuant to Executive Order 202.67, the suspension for civil cases in Executive Order 202.8, as modified and extended in subsequent Executive Orders, that tolled any 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 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the uniform court acts, or by any statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby no longer in effect as of November 4, 2020[.]
Therefore, as of November 4, 2020, the clock is once again ticking for civil litigants to file and serve according to the regular timetable. During the COVID-19-related tolling of the statute of limitations, there has been uncertainty over how to interpret the executive orders, i.e., whether they simply toll or suspend the statutes. Executive Order 202.72 does not give clear guidance as it uses these terms interchangeably—“the suspension for civil cases… that tolled any specific time limit… is hereby no longer in effect as of November 4, 2020.” (Emphases added.)
The majority view interpretation pressed by scholars is that litigants who had 15 days left as of March 20, 2020, continue to have 15 days to file from November 4 going forward. An alternative view is that November 4 was the drop-dead date for any claim whose limitation period otherwise would have expired since March 20, 2020. We expect that New York courts will likely decide this issue in the coming months.
We also anticipate that case law will develop surrounding New York’s borrowing statute. Under CPLR § 202, where a non-New York resident brings a lawsuit that accrued outside of New York, New York courts will apply the shorter limitations period between New York and the foreign state. If New York’s statute of limitations period ordinarily would be shorter than the foreign state’s period, arguably that statute should apply notwithstanding the tolling effected by the executive orders. A refusal to apply the tolled New York limitations in such circumstances arguably would be contrary to the executive orders.
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