ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS

July 18, 2022

Tolling the Statute of Limitations in consideration of the impact of COVID-19

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 582the 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 stated that the Governor 'hereby continue[s] the suspensions, and modifications of law, and any directives, not superseded by a subsequent directive,' made in the prior executive orders."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.

Click HEREto access the text of the Appellate Division's decision.

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL. For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf. Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: publications@nycap.rr.com