Due to the shutdown of the court system brought about by the COVID-19 pandemic, the Governor has issued a series of executive orders that toll the statutes of limitations on actions in New York, as well as filing deadlines applicable to litigation in the state court system. The original executive order was issued on March 20, 2020, and has twice been extended by subsequent executive orders, the most recent of which extends this toll to June 6, 2020—and it is possible that the toll may yet be extended further. Despite the clear language of the executive order and the equally clear intent in issuing it to facilitate a shutdown of businesses to cope with the COVID-19 emergency, there has been a degree of confusion and trepidation about its impact. In this column, we therefore review the pertinent executive orders and analyze them in relation to the decisional law and prior executive orders issued in response to different emergencies.

On March 7, 2020, Governor Cuomo issued Executive Order 202, declaring a disaster emergency for the entire state to remain in effect until Sept. 7, 2020. The Governor has since issued numerous further executive orders, which have collectively effected the statewide shutdown and imposed measures to accommodate that shutdown. Executive Order 202.8, issued on March 20, 2020, provides in pertinent part:

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.

Subsequently, Executive Order 202.14 extended the provisions Executive Order 202.8 to May 7, 2020, and Executive Order 202.28 extended them to June 6, 2020. Hence, as it currently stands, the tolling provision of Executive Order 202.8 runs 78 days from March 20, 2020 through June 6, 2020.

For the purpose of analyzing the impact of these executive orders on statutes of limitations, the focus is on the language that "any specific time limit for the commencement, filing, or service of any legal action … is hereby tolled from the date of this executive order until April 19, 2020." That is because the word "toll" means that the running of the clock is stayed during that time period.

In McDermott v. Torre, 56 N.Y.2d 399, 407 (1982), in determining whether the three-year statute of limitations applicable to medical malpractice actions that accrued before July 1, 1975 or the two and one half years statute of limitations applicable to malpractice actions accruing after that date applied to a case that accrued before that date but was tolled by continuous treatment, the Court of Appeals distinguished between a toll and a delay of accrual, and held that continuous treatment is a toll of the statute of limitations and that the statutory period does not begin to run until the toll ends. The court stated:

The action having accrued in 1974, the three-year Statute of Limitations then in effect attached. Torre's continuing treatment of plaintiff, if any, served to toll the running of the statute, but not to truncate it by imposing the lesser time limit of section 214-a. Thus, whenever treatment of plaintiff is found to have ended, a three-year time period for bringing suit should be imposed.

Further elucidation of the impact of a toll is gleaned from decisions addressing the impact on statutes of limitations of motions seeking permission to file late notices of claim. In Barchet v New York City Tr. Auth., 20 N.Y.2d 1 (1967), the court held that "the statute was tolled from the time the plaintiff commenced the proceeding to obtain leave of the court to file a late notice of claim until the order of Special Term granting that relief appeared in the New York Law Journal, the date upon which it was to take effect." The court explained the impact of the toll in that case, as follows:

On December 18, 1964, when the proceeding to file a late notice of claim was commenced, there remained five days in which to commence the action. The order of Special Term granting leave to file a late notice of claim took effect on February 19, 1965. The Statute of Limitations then commenced to run again.

Similarly, in Doddy v. City of New York, 45 A.D.3d 431 (1st Dept. 2007), the court held:

Plaintiffs moved to file a late notice of claim on July 10, 1991, 8 days before the year–and–90–day statute of limitations expired. A decision granting the motion, deeming the notice of claim timely served, was entered on March 31, 1992. The statute of limitations, tolled for 265 days, ran anew as of that date, and plaintiffs were required to serve their summons and complaint upon defendants on or before April 8, 1992.

It is therefore clear that the effect of a toll is to stay the running of the statute of limitations during the time that the toll is in effect, and that the statutory period resumes running upon the termination of the toll. The toll effected by Executive Order 202.8 and its subsequent extensions, as it currently stands, covers the 78-day period starting on March 20, 2020 and ending on June 6, 2020. That means that any cause of action that accrued prior to March 20, 2020 is extended by 78 days. If a statute of limitations was set to expire on March 25, 2020, the plaintiff will now have until 78 days later, June 11, 2020 to timely commence the action. If a statute of limitations was set to expire on May 28, 2020, the plaintiff will have until Aug. 14, 2020. The same applies where the statute of limitations would have expired after the toll ended. If it was to expire on June 30, 2020, it is extended by the toll until Sept. 16, 2020.

By its terms, the toll provided for in the executive orders also applies to causes of action that accrue during the period that it is in effect. However, the duration of the toll in those case will only be in effect for the period from the time it accrued until the toll ends. Therefore, a prospective plaintiff cannot simply tack on 78 days. Instead, the statute of limitations for any cause of action that accrues during the period of the toll will commence running on June 6, 2020.

There is an important practical impact of tolling statutes of limitations during this period rather than simply extending them until the emergency is over—it eliminates the impetus for a run on the courts in a rush to file as soon as the emergency is over. The courts would be overwhelmed by new filings that had accumulated during the shutdown. The tolling provision permits business to return to normal and new litigation to proceed as if the shutdown had not occurred.

The concerns that have been raised regarding the impact of Executive Order 202.8 stem largely from the impact of prior executive orders addressing statutes of limitations during prior state-wide emergencies, particularly during the Hurricane Sandy and 9/11 emergencies. However, the provisions and language of those executive orders were fundamentally different than that provided in Executive Order 202.8. For instance, Executive Order No. 113.7, issued on Sept. 12, 2001, provided, in pertinent part:

I hereby temporarily suspend, from the date the disaster emergency was declared, pursuant to Executive Order Number 113, issued on September 11, 2001 until further notice, the following laws:

Section 201 of the Civil Practice Law and Rules, so far as it bars actions whose limitation period concludes during the period commencing from the date that the disaster emergency was declared pursuant to Executive Order Number 113, issued on September 11, 2001, until further notice, and so far as it limits a courts authority to extend such time, whether or not the time to commence such an action is specified in Article 2 of the Civil Practice Law and Rules … .

Thus, by its express terms, the executive order suspended statutes of limitations only to the extent that they expired during the period of the emergency. Executive Order 52, issued on Oct. 31, 2012 in response to Hurricane Sandy, employed identical language. Neither of those executive orders stated that the statutes of limitations were tolled during a specified period.

The Second Department's decision addressing Executive Order 113.7 of 2011 and attendant executive orders in Scheja v. Sosa, 4 A.D.3d 410, 411-12 (2d Dept. 2004), sheds light on the distinctions between Executive Order 202.8 and the executive orders issued to address those earlier emergencies. It observed:

On September 12, 2001, the Governor issued Executive Order No. 113.7, continuing Executive Order No. 113 and amending it to suspend temporarily, until further notice, CPLR 201 insofar as it barred actions the limitations period of which concluded during the period from the date that the disaster emergency was declared (Sept. 11, 2001) pursuant to Executive Order No. 113, until further notice (see 9 NYCRR 5.113). By Executive Order No. 113.28, the Governor provided a cutoff date of October 12, 2001, for the general suspension of the statute of limitations contained in Executive Order No. 113.7 (see 9 NYCRR 5.113). The order provided an exception for those litigants or their attorneys who had been directly affected by the terrorist attack and temporarily suspended, until November 8, 2001, CPLR 201 insofar as it barred an action, by or on behalf of such person, if the limitations period with respect to a particular action concluded during the period the Executive Order was in effect (see 9 NYCRR 5.113).

In rejecting the argument of the plaintiff, who filed his complaint on March 19, 2002, that he should qualify for the extension of the statute of limitations under the executive orders, the court stated:

The plain meaning of these Executive Orders is that any litigant who was affected by the World Trade Center attacks and whose statute of limitations period expired between September 11, 2001 and November 8, 2001, was given a grace period of up until November 8, 2001, to satisfy the statute (see Randolph v. CIBC World Markets, 219 F Supp 2d 399, 401). The plaintiff urges an extraordinary interpretation of the Governor's Executive Orders as a tolling provision. According to his argument, any litigant who was affected by the disaster emergency could have their period of limitations tolled for the number of days from September 11, 2001, to November 8, 2001, no matter when the statute of limitations expired. This could not have been the intent of the Governor's Executive Orders. The state of emergency caused by the attacks on September 11, 2001, no longer existed at the time the plaintiff was required to commence his action in February 2002 and thus could not have interfered with his ability to meet the statute of limitations.

While the court noted that the emergency no longer existed when the plaintiff's statute of limitations expired in that case, that was in the context of its rejection of the plaintiff's interpretation of the executive orders "as a tolling provision." That it was not a toll is patently clear from (1) its express language suspending CPLR 201 only "so far as it bars actions whose limitation period concludes during the period commencing from the date that the disaster emergency was declared"; and (2) the absence of language that statutes of limitations were "tolled" from the date of the executive order until a specific date in the future. Executive Order 202.8 of 2020 was not limited to the former circumstance and it expressly used the language specifying the latter.

The tolling provision of Executive Order 202.08 was analyzed in the context of criminal proceedings by the court in People ex rel Badillo v. Brann, 2020 WL 1878094 (Sup. Ct., Queens Co. 2020, Zayas, J.), who compared the language of that executive order to those issued in response to Hurricane Sandy, and concluded that the "combined effect" of the 2012 executive orders "did not sweep as broadly as Executive Order 202.8—which makes sense, since, despite the immense scope of the disaster caused by Hurricane Sandy, that crisis did not result in the sort of unprecedented statewide shutdown of an as-yet-unknown duration caused by COVID-19—and thus explains why they were drafted differently."

There appears little basis for disputing that Executive Order 202.8 imposes a toll on all statutes of limitations for the duration of the period specified therein and in the subsequent executive orders extending it. It is a logical and practical remedy for an emergency that has effectively led to a time-out in litigation, in the courts and in society in general, and it will enable the practice of law to resume where it left off once the emergency abates.

Thomas A. Moore is senior partner and Matthew Gaier is a partner of Kramer, Dillof, Livingston & Moore.