On Sunday, March 22, 2020, pursuant to Administrative Order AO/78/20 of Chief Administrative Judge Lawrence Marks, the New York Unified Court System took the drastic step of suspending all filings (both paper and e-filing) in all but a select few types of cases in all New York Courts. The Order provides 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 list of "essential matters" set forth in Exhibit A includes certain Criminal Court matters, Family Court matters, and Civil Court matters involving applications addressing landlord lockouts (including reductions in essential services), serious code violations, serious repair orders, or for post-eviction relief. For Supreme Court matters, "essential matters" are listed as follows:
- Mental Hygiene Law (MHL) applications and hearings addressing patient retention or release;
- MHL hearings addressing the involuntary administration of medication and other medical care;
- newly filed MHL applications for an assisted outpatient treatment (AOT) plan;
- emergency applications in guardianship matters;
- temporary orders of protection (including but not limited to matters involving domestic violence);
- emergency applications related to the coronavirus;
- emergency Election Law applications; and
- extreme risk protection orders (ERPO).
Accordingly, most filings in civil litigation, including commercial litigation and employment law litigation, are suspended. The NYSCEF Resource Center has confirmed that "All non-essential filings for all case types electronically filed or in paper are suspended at this time."
There is a "catch-all" provision in Exhibit A, however, for "any other matter that the court deems essential." Per Judge Kaplan, commercial disputes are not considered essential.
On March 20, 2020, Governor Cuomo Tolled the Statute of Limitations and Court Other Deadlines Required by Law Until April 20, 2020
Pursuant to an Executive Order issued on March 20, 2020, Governor Cuomo tolled the statute of limitations and other court-imposed deadlines. The Executive Order specifically provides as follows:
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 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.
We interpret the language "or other process or proceeding," to include responses to discovery demands as well as oppositions and replies to motions. As the Executive Order also covers any process or proceeding "as prescribed by...order," it would also apply to any "so ordered" briefing schedules issued by the Court.
Please note that the language is protective rather than prohibitive, i.e., it would not prohibit the parties from agreeing to proceed with certain actions. However, any such actions must be consistent the Court's March 22, 2020 Administrative Order (see above) suspending all filings in all but a few emergency matters and the Court's March 19, 2020 Order (see below) limiting in-person appearances and travel and delaying resolution of discovery disputes.
The New York State Courts Have Issued an Order Discouraging In-Person Appearances and Delaying Discovery Proceedings
On March 19, 2020, Chief Administrative Judge Lawrence Marks issued Administrative Order AO/71/20. The Order specifically applies to civil litigation. It discourages " the prosecution of pending civil matters (including discovery) in a manner that requires in-person appearances or travel, or otherwise requires actions inconsistent with prevailing health and safety directives relating to the coronavirus health emergency."
Furthermore, it issues directives with regard to discovery in civil actions, encouraging parties to use "best efforts" to stipulate to extend discovery deadlines and postpone proceedings for up to ninety (90) days." If the parties cannot agree, "the proceedings shall be deferred until such later date when the court can review the matter and issue appropriate directives." Finally, it provides that "[i]n no event will participants in civil litigation be penalized if discovery compliance is delayed for reasons relating to the coronavirus public health emergency."
The New York State Supreme Court Previously Postponed all "Non-Essential" Functions for Civil Court
On March 15, 2020, Chief Administrative Judge Lawrence Marks issued a memorandum that "postpon[ed] all nonessential functions of the courts until further notice." It defined "essential functions" as "[e]ssential applications as the court may allow, e.g., Mental Hygiene Law applications, civil commitments, and guardianships." It further provided that pending civil and criminal trials would proceed until concluded but no new trials would be commenced until further notice.
As you are aware, things are changing quickly and there is no clear-cut authority or bright line rules. This is not an unequivocal statement of the law, but instead represents our best interpretation of where things currently stand. This summary does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the Covid-19 pandemic.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.