In conjunction with New York’s continued efforts to slow and stop the spread of COVID-19, New York’s Governor, Andrew Cuomo, has once again extended the tolling periods of many time limits under New York State law.

Signed on September 4, 2020, Executive Order 202.67 further tolled “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” from October 4, to November 3. This tolling period has been in effect since March 20, 2020 when Governor Cuomo signed Executive Order 202.8.

Executive Order 202.8 (and subsequent extension orders) acts to modify statutes of limitations, and statutes of repose, granting parties additional time within which to make claims. Statutes of limitations—which are in place to prevent the prosecution of old claims, for which evidence may no longer be available, or may have deteriorated over time—create a hard deadline within which claims may be made before they are considered “time barred” and no longer justiciable.

Effects of Tolling

The Executive Order does not provide specific guidance for how the tolling provision works, leaving its application open to interpretation.

While more conservative parties may choose to interpret the statute as extending filing deadlines until the first day after the tolling period expires (e.g., if a statute of limitation were to run on April 1st,2020, the new deadline to file would be November 4, 2020, or the day after the tolling provision expires), others may choose to apply the total tolled time—which is 228 days from March 20,2020 to November 3, 2020—to all statutes of limitation accruing after March 20, 2020 (e.g., if plaintiff’s deadline to file an action would have been October 10, 2020, plaintiff may expect their new deadline to file a claim as May 26, 2021).

Possible Challenges to Tolling Order

Though there have been no published decisions addressing the impact of these Executive Orders, it is possible that litigation could arise challenging the Governor’s authority to reach beyond his Executive powers to modify laws that are intended to be written by the legislature. This is especially the case of statutes of limitation, designed to protect parties’ due process rights by ensuring the availability of evidence for both the prosecution and defense.

Takeaways

If you are considering litigation, speak to your attorney about the best strategies for commencing an action to ensure that the mere passage of time does not bar you from bringing claims. Likewise, if you have been named in an action that you think has been untimely made, speak to an attorney to confirm what statute of limitations applies in your case, and if that time has expired.