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scales of justice with clock

During the COVID-19 pandemic, Governor Andrew M. Cuomo has issued, and continues to issue, a series of executive orders (65 in total so far), that have suspended procedural deadlines, including the statute of limitations. Various articles have been written that describe these executive orders as a toll of the statute of limitations for court proceedings (see Thomas A. Moore and Matthew Gaier, Medical Malpractice, Toll on Statute of Limitations During the COVID-19 Emergency, NYLJ, June 1, 2020; Patrick M. Connors, New York Practice, The COVID-19 Toll: Time Periods And the Courts During Pandemic, NYLJ, July 17, 2020). However, there is an important legal distinction between a “toll” and a “suspension.”

While a toll stops the running of the limitation period, with a tacked-on time period, a suspension of the statute of limitations would provide for a grace period until the conclusion of the last suspension directive in the latest executive order, a significantly shorter time period. Since no court has yet weighed in on whether these executive orders constitute a toll, these authors may have unwittingly set a trap for the unwary. This article examines the controlling statute and applicable caselaw and concludes that the executive orders should be considered a suspension and not a toll.

On March 7, 2020, the governor issued Executive Order No. 202, which declared a State of Emergency for the entire State of New York, due to the increasing transmission of COVID-19. On March 20, 2020, the Governor issued Executive Order No. 202.8, entitled “Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency,” which temporarily suspended or modified any time limitations set forth in any statute, legislative or administrative act, from March 20, 2020 until April 19, 2020.

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