United States: Further Tolling Of New York State Statute Of Limitations During Coronavirus

On March 20, 2020, Governor Cuomo issued Executive Order 202.8, which (in relevant part) expressly tolled all New York State limitation periods from March 20, 2020 to April 19, 2020:

• . . . [A]ny 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 other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020.
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The tolling period of Executive Order 202.8 was set to expire on April 19, 2020. As of April 23, 2020, the Governor has not issued an order expressly further extending the statute of limitations. Instead, as set forth below, he issued two executive orders generally extending prior executive orders.

On March 22, 2020, New York's Chief Administrative Judge, issued an order prohibiting physically or electronically filing any new nonessential cases based on Executive Order 202.8:

• . . . 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 . . . . This directive applies to both paper and electronic filings.

As of April 23, 2020, the New York State courts continue to prohibit filing any new nonessential cases.

Because filing new cases in the New York State court system remains generally prohibited, the continued suspension of the statute of limitations is essential. Indeed, in the ongoing pandemic, even if the ban on filing new cases is lifted or relaxed, many potential litigants and attorneys (especially those who serve vulnerable populations) may not be in a position to quickly file all new cases with expiring limitations periods.

On April 7, 2020, the Governor issued Executive Order 202.14 which stated, in relevant part:

• I, Andrew M. Cuomo . . . , do hereby continue the suspensions and modifications of law, and any directives, not superseded by a subsequent directive, made by Executive Order 202 and each successor Executive Order to 202, for thirty days until May 7, 2020, except as limited below:

Executive Order 202.14 further stated:

• By virtue of Executive Orders 202.3, 202.4, 202.5, 202.6, 202.7, 202.8, 202.10, 202.11, and 202.13 which closed or otherwise restricted public or private businesses or places of public accommodation, and which required postponement or cancellation of all non-essential gatherings of individuals of any size for any reason (e.g. parties, celebrations, games, meetings or other social events), all such Executive Orders shall be continued, provided that the expiration dates of such Executive Orders shall be aligned, such that all in-person business restrictions and workplace restrictions will be effective until 11:59 p.m. on April 29, 2020, unless later extended by a future Executive Order.

It is not entirely clear if Executive Order 202.14 was intended to further extend the statute of limitations until April 29, 2020 or until May 7, 2020. However, and especially if the limitations extension was through April 29, 2020 (by virtue of the paragraph quoted immediately above), it now appears that the statute of limitations was further extended to May 15, 2020 by Executive Order 202.18, issued on April 16, 2020, stating (in relevant part):

• Executive Order 202.14, which extended the provisions of Executive Orders 202.3, 202.4, 202.5, 202.6, 202.7, 202.8, 202.10, 202.11, and 202.13 which each closed or otherwise restricted public or private businesses or places of public accommodation, and which required postponement or cancellation of all non-essential gatherings of individuals of any size for any reason (e.g. parties, celebrations, games, meetings or other social events), is hereby continued, provided that the expiration date of such provisions of such Executive Orders shall be aligned, such that all in-person business restrictions and workplace restrictions will be effective until 11:59 p.m. on May 15, 2020, unless later extended by a future Executive Order.

In sum, it appears that currently all New York State limitations periods are suspended until May 7, 2020, and likely until May 15, 2020. Whether the limitations date is extended further will likely depend on the course of the pandemic and decisions about when to open the courts to new filings. Hopefully, practitioners will hear further clarification from the Governor or the court system as to the statute of limitations and/or as to the ability to file new cases before May 7, 2020.

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