This means that, absent a compelling showing of a need for emergency relief such as an injunction, routine business litigations are on hold indefinitely.
On March 22, 2020, New York’s Chief Administrative Judge of the Courts issued Administrative Order AO/78/20 providing that, until further notice, no filings―paper or electronic―would be accepted by New York courts, except in “essential matters.” This order prohibits any new cases from being filed―and any open cases from going forward―unless they fit the narrow list of “essential matters” annexed to the Administrative Order. This means that, absent a compelling showing of a need for emergency relief such as an injunction, routine business litigations―including breach of contract, employment disputes, corporate disputes, etc.―are on hold indefinitely. The court system has since clarified that, consistent with a prior Administrative Order, discovery can continue in ongoing cases where the parties agree that the discovery will not present any health concerns.
New York Statutes of Limitations Tolled
The Administrative Order followed Governor Andrew Cuomo’s March 20 Executive Order No. 202-8, which, among other things, stayed all statutes of limitations and other filing deadlines for any action in New York until April 19, 2020. The effect of the Executive Order is to extend the deadlines for any motions or other proceedings in any New York litigation. It also means the statute of limitations for any cause of action that accrued in New York prior to March 20 is tolled for 30 days.
Administrative Order AO/78/20 and “Essential Matters”
With filing deadlines held in abeyance by the foregoing Executive Order, the Chief Administrative Judge’s order stated:
Pursuant to the authority vested in me, in light of the emergency circumstances caused by the continuing COVID-19 outbreak in New York State and the nation, and consistent with the Governor of New York's recent executive order suspending statutes of limitation in legal matters, I direct that, effective immediately and until further order, no papers shall be accepted for filing by a county clerk or a court in any matter of a type not included on the list of essential matters attached as Exh. A. This directive applies to both paper and electronic filings.
The enumerated list of “Essential Proceedings” is “subject to ongoing review and amendment as necessary.” As of 4:00 p.m., March 24, the list is as follows:
A. Criminal matters
2. bail applications, reviews and writs
3. temporary orders of protection
4. resentencing of retained and incarcerated defendants
5. essential sex offender registration act (SORA) matters
B. Family Court
1. child protection intake cases involving removal applications
2. newly filed juvenile delinquency intake cases involving remand placement applications, or modification thereof
3. emergency family offense petitions/temporary orders of protection
4. orders to show cause
5. stipulations on submission
C. Supreme Court
1. Mental Hygiene Law (MHL) applications and hearings addressing patient retention or release
2. MHL hearings addressing the involuntary administration of medication and other medical care
3. newly filed MHL applications for an assisted outpatient treatment (AOT) plan
4. emergency applications in guardianship matters
5. temporary orders of protection (including but not limited to matters involving domestic violence)
6. emergency applications related to the coronavirus
7. emergency Election Law applications
8. extreme risk protection orders (ERPO)
D. Civil/Housing matters
1. applications addressing landlord lockouts (including reductions in essential services)
2. applications addressing serious code violations
3. applications addressing serious repair orders
4. applications for post-eviction relief
E. All Courts
1. any other matter that the court deems essential
Business Disputes Likely Not “Essential” Unless Injunctions Sought
Notably, none of the “Essential Proceedings” annexed to the Administrative Order cover typical commercial disputes. A litigant’s best hope for any New York court to hear its case, therefore, is to persuade the court that its case fits the catch-all provision, i.e., is “any other matter that the court deems essential.” On March 23, the website for the New York Court system lent further guidance on AO/78/20 by clarifying that this catch-all provision should be narrowly construed so that such cases are “rare”:
Section E of the list of essential proceedings includes “any other matter that the court deems essential.” Consistent with the goal of the administrative order to limit new filings, this catch-all provision is designed to address the very rare cases where individual facts necessitate an immediate hearing notwithstanding current public health concerns; it will be interpreted restrictively. Persons who believe that a specific pending or new matter should be included in this highly restrictive group should apply to the court for this designation by emergency application, including a detailed explanation of the applicant’s rationale.
In short, aside from discovery, routine business litigation is on hold for now, whether in a new or pending matter. Courts will make an exception only where a litigant presents a detailed and compelling case of the necessity to be heard.
The court system’s reference to “emergency application,” “rare” and “restrictive” suggests exceptions are likely to be limited to certain requests for temporary restraining orders and injunctions. Thus, it is likely that any party seeking to move forward with their case must persuade the court with a strong showing of irreparable harm, likelihood of success on the merits and a balancing of the equities favoring the movant. See, e.g., Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 N.Y.3d 839, 840 (2005). In these circumstances, the court’s “balancing of equities” analysis may include considerations of whether constrained judicial resources should be devoted to a particular issue in light of the current economic and public health crisis, and whether it would be equitable to enjoin an adversary’s conduct during the crisis. A movant’s constitutional right to access a court may also be a factor in this analysis.
Constitutional Right of Access
An absolute bar to the court would raise constitutional issues. The “right of access to the courts is one of the fundamental rights protected by the Constitution, ‘conservative of all other rights, and l[ying] at the foundation of orderly government.’” Kirton v. Hassel, 1998 WL 146701, at *3 (E.D.N.Y.1998). “It is well established that one has a constitutional right to reasonable access to the courts.” Id.; see also Christopher v. Harbury, 536 U.S. 403, 412–13 (2002) (“[T]he essence of the access claim is that official action is presently denying an opportunity to litigate for a class of potential plaintiffs.”)
It is unlikely that AO/78/20’s blanket delay on filings raises a constitutional issue. A right-of-access claim “is only viable if a judicial remedy was ‘completely foreclosed’ by the alleged conduct.” Kosmider v Garcia, 111 A.D.3d 1134, 976 N.Y.S.2d 256, 261 (3d Dep’t 2013). All statutes of limitations are concurrently tolled and prejudgment interest continues to accrue, but a legal remedy is not completely foreclosed. Courts have declined to find constitutional violations where there were mere delays in proceedings. See, e.g., Kirton, 1998 WL 146701, at *4 (rejecting deprivation claim where plaintiff “certainly could have returned to the court another day to re-lodge his complaint”).
On the other hand, if a litigant can show irreparable harm as a result of the court’s refusal to hear a viable claim for injunctive relief, that refusal could support a constitutional claim. See, e.g., Aberdeen Restaurant Corp. v Gottfried, 158 Misc. 785 (N.Y. Sup. N.Y. Co. 1935) (“Constitutionally, equity jurisdiction is an inherent element of the state court. If a litigant is entitled to an equitable remedy and has no adequate legal remedy, a destruction of such right of redress would be a denial of justice, and thus a violation of both State and Federal Constitutions.”). To be sure, the government can proscribe remedies available to a class of plaintiffs, but they cannot “entirely foreclose, general use of the courts by would-be plaintiffs.” City of New York v. Beretta U.S.A. Corp., 524 F.3d 384, 398 (2d Cir. 2008).
Order Limited to New York State Court
The Administrative Order does not affect federal lawsuits. Presently, litigants are permitted to file new lawsuits in New York’s federal courts, and parties to ongoing federal lawsuits are permitted to file papers. That said, matters remain in flux, and the Southern District of New York has announced that civil cases “will proceed at the discretion of the individual Judge.”
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