After a run of seven and one-half months, the COVID-19 Toll established by the Governor’s executive orders came to an end on Nov. 3, 2020. Yet, the hope of many lawyers in the state, particularly those belonging to the plaintiffs’ bar, is that it lives on in our jurisprudence. As we noted in the hypotheticals in the July 17 article in this space, if it is truly a toll and the Governor had the power to implement it, parties will be relying on it and courts will be grappling with it through the middle of this decade.

Does the Governor Have Power To ‘Toll’ Time Periods?

Doubt has been expressed on this important issue. Justice Thomas Whelan authored an article in these pages on October 6 in which he contends that the Governor’s COVID-19 executive orders provided for a suspension of various time periods that is in essence an extension, and not a toll. I respectfully disagree with the contention that the language in the various executive orders do not provide for a “toll” of the various time periods, as opposed to a mere extension until a date certain. Executive Order 202.72, which was issued after the publication of Justice Whelan’s article, again expressly states that various time periods were “tolled” by Executive Orders 202.8 through 202.67. Nonetheless, the article does raise an important issue regarding whether Executive Law §29-a, which authorizes the Governor to, among other things, “temporarily suspend any statute,” also authorizes the Governor to “toll” various time periods, including the statute of limitations. Given the nature of the 9/11 and Superstorm Sandy executive orders, which did not provide for tolls, we flagged this issue as one of first impression. See Siegel & Connors, New York Practice §33 (July 2020 Supplement). This is more a question of executive power than civil procedure and, unfortunately, will almost certainly need to be litigated and resolved by the courts. See generally Souren A. Israelyan, The Governor Had Authority To Toll The Statute of Limitations, N.Y.L.J., Oct. 19, 2020, p. 4 (“Executive Law 29-a gave the authority to the Governor to issue an extension of time and/or a toll as necessary to cope with imminent, urgent or impending disaster.”).

A Legislative Fix?

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