Written by: Stephen J. Corell, paralegal

On March 20, 2020, Governor Cuomo issued an executive order that suspends the deadline to file any State action—more commonly called your “Statute of Limitations”. The exact words of the order read that “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, 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 court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020.”

Cuomo’s reasoning for this suspension was to “limit court operations to essential matters during the pendency of the COVID-19 health crisis.” While the order contains various other provisions designed to accomplish this same purpose, this suspension of deadlines is arguably the most applicable to any litigant who is seeking to file an action in a State Court.

Since the initial March 20 Executive Order, the Governor has extended this tolling time-frame multiple times, and the suspension is—as of this date—still active. The extensions suspended the filing deadlines through May 7, then June 6, then July 6, August 7 and—more recently—September 4, for a total of 181 days.

While it is explicitly clear that this monthly series of Executive Orders applies to any State action—although it does not apply to Federal Courts—what remains unclear from the language of each successive order is what exactly is meant by “tolled”. If your time limit fell within the period of March 20 and September 4, will it be deferred until the end of the period and become due on September 4? Or is the clock paused, effectively adding 181 days—thus far—to the date on which the clock ended before? These are important things to know, and the answers are neither clear nor certain.  

The general consensus seems to be that the clock is paused, requiring an individual calculation of your action’s original deadline by adding 181 days to that date. However, there is a spectrum of opinion on this interpretation. There is also no guarantee that judges will interpret the word “toll” one way or another, nor is there a guarantee that, if you file an action after your original statute of limitations, that the other parties in your action won’t object to it or attempt to dismiss it anyway just to make you do the math. Governor Cuomo may also continue to extend your deadline by further Executive Orders, depending on whether the severity of Covid-19 spikes again once schools reopen. There are no surefire answers to these questions. As such, caution and a thorough review of the options are imperative.

Due to the novel nature of these Executive Orders, it is important to have knowledgeable legal counsel to analyze the timing of your case and help you calculate the correct date by which to file, in order to preserve your rights. You should also consider filing in such a way that best mitigates the risks related to varying and unpredictable interpretations of Cuomo’s orders. At the Law Firm of Aaron Gavenda, we can walk you through this process, however confusing it might be.

Whether you intend to file a case and need to know your rights, or if you simply need to respond to someone else’s case against you and need to figure out if you have a potential defense, give us a call. We’re here to help.

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