Is Executive Order 202.8 a “Blanket Toll” on All New York State Court Deadlines?

Question: Is Executive Order 202.8 a “Blanket Toll” on All New York State Court Deadlines?

The answer appears to be yes, it is. 

By enacting Executive Order 202.8, New York State Governor Andrew Cuomo pressed pause on statutes of limitations and other litigation deadlines from on March 20, 2020 through April 19, 2020. The Governor’s Executive Order was followed by Chief Administrative Justice Lawrence K. Marks’ March 22 Administrative Order directing County Clerks not to accept filings in non-emergent civil actions, electronic or otherwise, until further notice. Chief Justice Janet DiFiore followed suit, undertaking efforts to limit courthouse traffic and rolling out a virtual courts system being adopted for essential proceedings. 

To unpack what these directives means for most litigants and their interim and future deadlines, the language of the Executive Order itself, when compared to interpretations of prior executive orders, is instructive. EO 202.8 states, in relevant 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 commencements, 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 courts act, or by any other statute, local law, ordinance, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020. (emphasis added). 

Looking only to the language of EO 202.8, the buzzword Governor Cuomo included is “tolled”. One is led to understand that all deadlines set to expire after its promulgation (and before April 19, 2020) are extended by a like number of days after April 19, 2020. For example, if an individual defendant was personally served with process in New York State on March 15, his or her time to respond to the complaint would expire on April 4, 2020. However, due to the tolling language of EO 202.8, the clock stops running from March 20 and recommences April 19, extending the defendant’s time to respond to May 4, 2020. 

Again, looking only to the language of EO 202.8 itself, the time within which to commence an action or make a necessary filing is similarly extended.

But, in these times of uncertainty, the question still lingers – is EO 202.8 in fact a “blanket toll” on all statutes and deadlines? Unlike prior executive orders EO 113.7 (issued by then Governor Pataki in the wake of September 11) and EO 52 (by Governor Cuomo in the aftermath of Hurricane Sandy), EO 202.8 explicitly states it is a toll on the limitations period. According to courts interpreting past EOs 113.7 and 52, the plain language of prior executive orders provided only for a “suspension” or “modification” of the limitations period. In those instances, the courts only provided a “grace period” for would-be litigants whose time to file was expiring.

Here, practitioners might take comfort in Governor Cuomo’s recent decision to explicitly use the word tolled when enacting EO 202.8. In combination with the current the prohibition on non-emergent State Court filings, the “blanket toll” interpretation seems a safe bet. If one is intent to err on the side of caution, when encountering a limitations period set to expire after April 19, 2020, continue to monitor the situation as it develops and adhere to the existing deadline if practicable. Better yet, if you’ve already commenced litigation, reach an agreement with your adversary as to the resetting of deadlines (which many courts have encouraged) and take any guesswork out of the equation. 

If you have any questions, please contact Paul O'Brien at pobrien@frblaw.com, Samantha Compono at scompono@frblaw.com, or by phone (212) 203-3255.

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