Has the Governor's Executive Order Suspended or Tolled Limitations Periods?
Today we write about New York Executive Order 202.67, which was signed by the Governor October 5 and extends until November 3, the time limits for commencement, filing, or service of any legal "action, notice, motion, or other process or proceeding as prescribed by the procedural laws of the state."
There has been debate among the legal community whether the Executive Orders have provided a "toll" or merely a suspension.
What is the Difference Between a Toll and Suspension?
Under the law, a toll tacks on more time to pursue a claim or file a motion. Meaning if time limit has been tolled for 7 months, come November 4, there would be an additional 7 months to pursue a claim. But a suspension merely freezes the limitations periods during the time that the Executive Orders are in effect, and there is no additional time added after they are over.
Executive Order 202.8 provided that:
In accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis, 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.
EO 202.8 was extended 7 times, one month each. The final order being EO 202.67. This last order, declared that the tolling or suspension provisions would not be renewed again.
What is Causing the Issue?
The language used in the Governor's various executive orders has varied. Three of the orders have used the word "tolling" or "tolled." Including the first and last EO's. Most of the interim orders did not use the tolling language. As a result, it's unclear if the limitations period has been tolled or simply suspended.
What is the Legal Community Saying?
Unfortunately, there is not much consensus on this issue.
Patrick M. Connors is a Professor of Law in New York Civil Practice at Albany Law School. He is also the author of Siegel & Connors, New York Practice (Thomson, 6th ed. 2018). It is his opinion that the EO's provide for a tolling, not merely an suspension in this New York Law Journal Article from July. Another well reason article was published in the Law Journal in June, also asserts that the EO's provide for a toll.
On the other side of this equation, is this article from Suffolk County Supreme Court Justice Thomas Whelan who argues that the EO's provide for merely a suspension and not a tolling.
What are we Advising Clients?
Any claims that might be subject to these EO's need to be filed on November 4th. You do not want to be the "test" case. Most counties in New York now have electronic filing, and you can file a claim up to 11:59pm if you have a statute of limitations issue. New York also permits the summons with notice practice, so that if you are really short on time, you can quickly file your commencement documents and serve a complaint later.
Realistically, either thousands of lawsuits across the state are going to be filed on the day after Election Day or many New Yorker's are going to unwittingly lose their rights to pursue a claim. This is administratively untenable. Better to play it on the safe side.