In connection with the continued efforts of New York State to grapple with the COVID‑19 pandemic, a recent order updated the emergency measures in place impacting pending and potential litigation in New York and possibly beyond.
On September 4, 2020, Governor Cuomo signed an executive order extending the tolling of most time limits under New York law—which was first enacted in the Governor’s March 20, 2020 order (the “Tolling Order”)—through October 4, 2020.
We addressed the Governor’s initial order in a prior publication and we provide a summary and update here. We also previously addressed the prior restrictions on new filings implemented by the Chief Administrative Judge of the New York State Courts, which were lifted in a May 20, 2020 Memorandum.
Governor Cuomo’s September 4, 2020 executive order continues the suspension and tolling of any specific time limit for “the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding” for the period from March 20, 2020 (the date of Tolling Order) through October 4, 2020. This applies to any such time limits “prescribed by any procedural laws” of New York, expressly including the civil practice law and rules (CPLR), criminal procedure law, the family court act, the court of claims act, the surrogate’s court procedure act, and the uniform court acts, or “any other statute, local law, ordinance, order, rule, or regulation.” See Tolling Order.
The impact of these orders continues to be potentially far-reaching but subject to a number of open questions.
First, the way in which the Tolling Order may apply under different circumstances is subject to multiple interpretations, and affected parties may take different positions before different courts—potentially leading to inconsistency across cases absent further guidance.
A few initial broad possibilities come to mind concerning how time limits may be impacted:
- For deadlines that fall between March 20 and October 4, some parties may take the view that:
- The new deadline should be calculated by adding 198 days (i.e., the length of the tolling period) to the prior deadline; or
- The new deadline should be the next business day after the tolling period expires, i.e., October 5.
- For deadlines that do not otherwise fall between March 20 and October 4, some parties may take the view that:
- Such deadlines must also be extended for the length of the tolling period (i.e., 198 days), because the Tolling Order should be understood as essentially providing a broad tolling of any time that elapses during this emergency period; or
- Such deadlines are not subject to the Tolling Order because it refers to “any specific time limit . . . from the date of this executive order [March 20, 2020] until April 19, 2020 [now extended to October 4, 2020].”
Second, perhaps the most significant aspect of these orders is the potential impact on deadlines based on New York statutes of limitations (SOL) and statutes of repose (SOR)—but it is possible that the Tolling Order could be subject to challenge on that basis or to judicial clarification that limits any such impact. As written, the Tolling Order appears to include SOL and SOR deadlines—but it is possible that its broad scope will be subject to challenge and/or interpreted more narrowly by a court.
For example, the Tolling Order indicates that is pursuant to Section 29-a of article 2-b of the Executive Law, which provides that “[s]ubject to the state constitution, the federal constitution and federal statutes and regulations, the governor may by executive order temporarily suspend any statute, local law, ordinance, or orders, rules or regulations, or parts thereof, of any agency during a state disaster emergency [which includes epidemics], if compliance with such provisions would prevent, hinder, or delay action necessary to cope with the disaster or if necessary to assist or aid in coping with such disaster.” (emphasis added).
The scope of executive authority under Section 29-a of the Executive Law has rarely been addressed by the courts. In a decision related to the attacks of September 11, 2001, a New York court held that executive orders issued by then-Governor Pataki after the attacks, suspending or modifying the “speedy trial” statute, were constitutional. See People v. Haneiph, 745 N.Y.S.2d 405 (Sup. Ct. Kings Cnty. 2002). The court recognized in that case that “[t]he constitutional principle of separation of powers, implied by the separate grants of power to each of the coordinate branches of government, requires that the legislature make critical policy decisions, while the executive branch’s function is to implement those decisions,” but went on to note that “[d]espite this functional separation, the Court of Appeals [as the highest court of the State of New York] has recognized that the duties and powers of the various branches of government cannot always be completely separated” and “has acknowledged that there need not always be a specific legislative directive authorizing a particular executive act as long as the basic policy decisions underlying the regulations have been made and articulated by the Legislature.” Id. at 408-09 (internal quotation marks and citations omitted). The court further noted that there was a statutory exception for the “speedy trial” requirement (which requires that a criminal case be dismissed if the prosecutors are not ready for trial within 90 days when a defendant is charged with a misdemeanor punishable by a sentence of more than three months) when “exceptional circumstances” are present. Id. at 409. The court also observed that “it is the duty of the courts to adopt construction of a statute that will bring it into harmony with the Constitution, if the statutory language will permit.” Id. The court concluded that the New York Governor had not “usurp[ed] the functions of the legislature in issuing the executive orders” and that the latter were constitutional, because “[o]ne can hardly think of an event that fits the definition of an exceptional circumstance more closely than the September 11th attack.” Id.
Here, it is possible that a party could argue that the Governor acted outside the scope of his authority under Article IV of the New York State Constitution, but the current atmosphere suggests that such a challenge may be unlikely to gain traction. It is also possible that a court could interpret the Tolling Order in such a way to avoid any potential constitutional issue. Moreover, affected parties whose deadlines had otherwise elapsed would likely argue that, whether or not the order was constitutional, they were entitled to rely on it and their claims should not be barred as a matter of equity.
Third, it remains to be seen how far the scope of the Tolling Order may extend beyond New York State courts. The Tolling Order on its face applies to any time limit that is determined by New York law. As such, any case brought in any court on the basis of New York law could be implicated to the extent New York law applies. This includes cases pending in federal courts and other states. It is unclear whether federal courts and other state courts will actually enforce the Tolling Order—an issue which may require federal and other state courts to determine whether the Tolling Order constitutes substantive New York law that they should apply, in addition to the separation of powers issues noted above.
It is clear that these orders will continue to have a significant impact on litigation brought under New York law and cases pending in New York State courts. They seem to give rise to a number of questions and uncertainties, particularly as to the scope of the tolling instituted by Governor Cuomo’s executive order. While such litigation can now be filed, the full extent of that litigation may not yet emerge due to the Tolling Order and may be further complicated by disputes as to the effects of the Tolling Order.