Barring any tolls or suspensions, a petitioner ordinarily would have had to file a timely cause of action subject to the relevant statute of limitations. In this action the Appellate Division considered the impact of COVID-19 pandemic on a statute of limitation.
Here the critical element was then-Governor Andrew M. Cuomo signing of Executive Order No. 202.8 in response to the public health crisis occasioned by the COVID-19 pandemic. As relevant in this action, that Executive Order "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, . . . until April 19, 2020."
This tolling of the relevant statute of limitations was extended through several subsequent Executive Orders, the last of which remained in effect until November 3, 2020.
In this action Petitioner contended that the Executive Orders effectively extended the statute of limitations, as relevant here, "228 days (the amount of time the Executive Orders remained in effect) [which] should be added to the date on which the statute of limitations would have otherwise run for filing a timely petition.
Citing Chavez v Occidental Chem. Corp., 35 NY3d 492, the Appellate Division, Third Department, said it was not persuaded by this argument, noting that, as explained by the Court of Appeals, "[a] toll does not extend the statute of limitations indefinitely but merely suspends the running of the applicable statute of limitations for a finite ... time period; ... the period of the toll is excluded from the calculation of the time in which the [petitioner] can commence an action [or proceeding]."
Referencing the Appellate Division, Second Department's decision in Brash v Richards 195 AD3d 582, the Third Department noted that the Executive Order initially expressly used the word "toll" and, "although the . . . executive orders issued after [that one] did not use [that same word, they] all ... stated that the Governor 'hereby continue[s] the suspensions, and modifications of law, and any directives, not superseded by a subsequent directive,' made in the prior executive orders."
In this instance, said the court, Plaintiff filed his petition a week too late, rendering the proceeding time-barred, and affirmed the dismissal of the Plaintiff's petition.
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