Alerts and Updates

New York Governor Issues One More (and One Final?) COVID-Related Executive Order Tolling Statutes of Limitations

October 14, 2020

Unlike those prior executive orders, however, the latest order signals it may be the last of its kind for any civil case. 

On October 4, 2020, New York Governor Andrew M. Cuomo issued Executive Order 202.67, which further tolled New York statutes of limitations until November 3, 2020, and extends a toll first instituted by Executive Order 202.8 on March 20, 2020.

The new Executive Order 202.67 states, in relevant part:

The suspension 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 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 statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby continued, as modified by prior executive orders, provided however, for any civil case, such suspension is only effective until November 3, 2020, and after such date any such time limit will no longer be tolled[.]

Executive Order 202.67 is the latest order extending the initial toll of New York’s statutes of limitations that Governor Cuomo ordered at the onset of the COVID-19 pandemic. See also Executive Orders 202.14, 202.28, 202.38, 202.48, 202.55, 202.55.1 and 202.60. The order’s 30-day renewal period is consistent with prior executive orders and with the maximum period allowed for the suspension of statutes of limitation under N.Y. Executive Law § 29-a(2)(a).

Unlike those prior executive orders, however, the latest order signals it may be the last of its kind for any civil case. No other prior executive order extending the March 20, 2020, initial toll period states “after such date any such time limit will no longer be tolled[.]” If no further extension is forthcoming, any potential litigants who have refrained from filing suit during the pandemic will need to move forward or risk losing any viable claim to the statute of limitations.

The consensus view is that these executive orders hold in abeyance the timeliness of all litigants’ claims as they existed on March 20, 2020. That is, a prospective litigant whose limitation period was to expire on April 1, 2020―i.e., 12 days after the date of COVID-tolling on March 20, 2020―will have 12 more days after November 3, 2020, to file suit. The statute of limitations presumably has not even begun to run for claims that arose after March 20, 2020.

As of yet, courts interpreting Executive Order 202.8 and its subsequent extensions have focused more on its sweeping scope than on timing issues. For instance, two separate courts have held that the tolling orders apply to timeliness requirements in New York’s criminal procedure and juvenile delinquency statutes such as N.Y. Crim. Proc. § 180.80 (People ex rel. Nevins v. Brann, 122 N.Y.S.3d 874 (Sup. Ct. Queens Co. 2020)) and N.Y. Fam. Ct. § 302.2 (Matter of M.R., D-08439/20, 2020 WL 4669178 (Fam. Ct. Kings Co. Aug. 10, 2020)). These rulings demonstrate judicial endorsement of Governor Cuomo’s exercise of authority under Section 29-a of New York’s Executive Law. Come November, there will surely be more such challenges.

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