Upon the papers filed in support of the applications and the papers filed in opposition thereto, and after hearing oral arguments, it is DECISION & ORDER ORDERED that Defendant’s motion seeking dismissal of the complaint pursuant to CPLR 3211(a)(5), is hereby denied. This action arises from an alleged motor vehicle accident involving vehicles driven by the plaintiff and the defendant that occurred on October 31, 2017. Pursuant to CPLR §214(5), the Plaintiff typically would have a period of three (3) years to commence a personal injury action. This would mark the deadline for suit to be filed in this instance on October 31, 2020. However, the Defendant unfortunately passed away on July 15, 2019. Therefore, under CPLR §210(b), the statute of limitations was automatically frozen from that date for a period of eighteen months. Ordinarily, under the statute, the Plaintiff in this case would have had until April 30, 2022 to file their lawsuit. However, on March 20, 2020, shortly after the mass shutdowns in the early days of the COVID-19 pandemic, former Governor Andrew Cuomo issued Executive Order No. 202.8 (9 NYCRR 8.202.8), which provided: “I hereby temporarily suspend or modify, for the period from the date of this Executive Order through April 19, 2020 the following: “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.” This initial order was followed by nine subsequent Executive Orders (collectively hereinafter “the Executive Orders”) that extended the tolling period up to, and including, November 3, 20201. In the final Executive Order issued on November 3, 2020, Governor Cuomo stated that the “toll” would cease on November 4, 2020 (see Executive Order [A. Cuomo] No. 202.72 [9 NYCRR 8.202.72]). In total, the Executive Orders tolled various statutes of limitations from March, 20, 2020, up through and including November 3, 2020, for a period of 228 days. See Espinal v. Port Authority, 2023 N.Y. Slip Op. 00844 [2d Dep't 2023]; Brash v. Richards, 195 AD3d 582 [2d Dep't 2021]. In Espinal, the Second Department reviewed a claim against the Port Authority that arose from an incident on May 17, 2019. Pursuant to Unconsolidated Laws of N.Y. §7107, the Plaintiff in that case would ordinarily have had one-year to commence the action. The Second Department agreed with the Plaintiffs argument that the Executive Orders “froze” the statutory one-year deadline, and specifically noted that the 228 days covered under the Executive Orders were to be subtracted from that one-year period, which in that instance would have ended on May 7, 2020. (See Espinal, 2023 N.Y. Slip Op. 00844 at 3). In this matter, the Defendant is correct that if the pandemic were not a factor, the Plaintiff would have had until April 30, 2022 to file suit. The Defendant further argues that because the Plaintiffs filing deadline did not fall within the 228 days covered by the Executive Orders, the orders are irrelevant to this analysis. However, under Espinal, the 228 days of the Executive Orders must be excluded from the calculation. If this Court were to adopt the Defendant’s interpretation that the Executive Orders only suspended filing deadlines, it would ignore the Appellate Division’s analysis in Espinal that the one-year filing deadline in that instance was frozen, and the 228 days covered by the Executive Orders must be subtracted from the statutory filing period (id., emphasis added). Under the Defendant’s analysis, no discussion of subtraction would be required, as any filing deadline falling during the pendency of the Executive Orders would simply be suspended until November 4, 2020. However, this Court finds that the 228 days covered under the Executive Orders are excluded in this instance, meaning that Plaintiff’s deadline to file her complaint would have been December 14, 2022. Therefore, Plaintiffs complaint filed on November 23, 2022 was timely. This Court further agrees with Plaintiff that the claims presented in this case are not precluded by Plaintiffs prior filings under index numbers 150588/2021 or 150772/2022. Index No. 150588/2021, Danielle Romano-Nelson v. The Estate of Walter C. Bougades was an Order to Show Cause brought by the Plaintiff against the Defendant in March of 2021, prior to an administrator of the Defendant’s estate being appointed. On April 25, 2022, this Court denied the order without prejudice, and directed the Plaintiff to seek relief in Surrogate’s Court. Index No. 150716/2022, Danielle Romano-Nelson v. The Estate of Walter C. Bougades et. al. was a subsequent Order to Show Cause brought by Plaintiff against the Defendant in April of 2022, where Plaintiff again sought to compel the appointment of an administrator of the Defendant’s estate. Defendant’s counsel, at that time acting in the interest of the Defendant, filed a cross-motion to dismiss the action. On June 23, 2022 this Court again denied Plaintiffs order and granted the cross-motion. As Plaintiff correctly argues, no determinations made in these cases by this Court preclude any further determinations of the merits in this case. It is further ORDERED that in light of the Court’s decision here, Plaintiffs motion (#002) for an order pursuant to CPLR §203(b) and §203(c) is denied as moot. This constitutes the Decision and Order of the Court. Dated: March 9, 2023
