Extensions of the Statute of Limitations during the Pandemic: What is the most Prudent Date to Commence an Action?
Imagine you have a negligence claim based on a traffic accident in New York on March 28, 2017. Under normal circumstances, you would have had to commence an action prior to March 28, 2020 because the New York statute of limitations expired on that date1. But in March 2020, the Covid-19 Pandemic closed courts, law firms and most other litigation related facilities. To deal with this, on March 20, 2020, Governor Cuomo issued an Executive Order2, which states in part:
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,…is hereby tolled from the date of this executive order until April 19, 2020.
Because of the continuing Pandemic, the Governor issued additional executive orders extending these time periods. Even though parties were permitted to file new actions beginning in late May 2020, the Governor issued additional executive orders extending this time period through May, June, July, and October, with the current Executive Order extending the time to November 3, 20203.
Though these orders and extensions appear straightforward, there is a difference of opinion on what would be the safest date to file an action. The difference rests on the distinction between “tolling” and “suspending” a statute of limitations (an “Extension Period”).
If a statute of limitations is “tolled,” that means the time-period stops running during the Extension Period. When the Extension Period ends, a plaintiff has an additional period consisting of the total number of days in the Extension Period. In our example, under the current Executive Order, a plaintiff’s action would be timely if brought by June 19, 2021, or 228 days after November 3, 20204.
If the statute of limitation is “suspended,” the time to file an action is the later of (a) the end date of the Extension Period; and (b) the original end date of the statute of limitations if there had been no Extension Period. In our example, that would be November 3, 2020 (the later of March 28, 2020 and November 3, 2020)5. This view was set forth in an article by a New York State Supreme Court Justice in early October, and argues the Governor does not have the power under relevant statutes to toll the statute of limitations and may only suspend it.
In light of this difference, the prudent course is to file any action under the latter suspension framework, which means any action in which the original statute of limitations has already run during the Pandemic should be filed no later than November 3, 2020, unless there is an additional extension by the Governor. Cases in which the statute of limitations will expire after November 3, 2020 should be filed by that original date, without any extension. Absent further clarification by legislation or otherwise, there is substantial risk in assuming the period is tolled by the days in the Extension Period, as the first view holds. That this position has been taken by a sitting Supreme Court Justice should end any doubt as to the prudent course.
We are available to discuss any questions or issues concerning this article.
- 1 NY CPLR § 214.
- 2 Executive Order No. 202.8, “Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency”
- 3 Executive Order No. 202.67, October 4, 2020.
- 4 The Governor had Authority to Toll the statute of limitations, Souren A. Israelyan, NYLJ, October 19, 2020.
- 5 Executive Orders: A Suspension, Not a Toll of the SOL, Thomas F. Whelan. Justice, Supreme Court of New York, Suffolk County, NYLJ, October 6, 2020.
* * *
Peter Janovsky is a partner at ZEK and a member of both its Litigation and Bankruptcy groups. His 32 years of experience includes successfully litigating trials, motions and appeals in complex real estate, secured lending, title, partnership agreements, license agreements and many other issues in Courts on all levels.