When the pandemic struck, people stayed home. And when they stayed home, many couldn’t work. And if they could work, it wasn’t the same.

To say that had an impact on the justice system would be an understatement. Every conceivable time limit set forth in the law was now a problem. Such as many statutes of limitations. Civl law, criminal law, family law, no matter what.

Lawyers couldn’t safely go to their offices where the files were, and even if they were backed up in the cloud and accessible at home, couldn’t meet with clients, couldn’t investigate scenes, couldn’t get process servers to serve process. This was obvious to anyone with functioning neurons.

So on March 20, 2020, Gov. Andrew Cuomo issued Executive Order 202.8 to suspend the many statutes of limitations for 30 days. He has that authority under Executive Law § 29-a. Nine other 30-day orders followed regarding the suspension. Except for those times he referred to this as a toll. This was his wording on the first order:

“In accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis, 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.” 

On October 4th, however, he specially called it a toll in Exec. Order 202.67.

Is there a difference between a suspension and a toll? As the late Professor David Siegel used to say, “You never want to be the test case.” Let some other poor slob carry that water to the appellate courts. Be conservative.

But ultimately, you need to know. Why? Because as Suffolk County Justice Thomas Whalen argued in the New York Law Journal two days after Gov. Cuomo called it a toll, the Executive Law grants permission to suspend and not toll, and there is a difference: A suspension prevents the statute of limitations from expiring until the suspension is lifted. Thus, if it would expire during the course of suspension, then it expires on the day the suspension is lifted.

A toll, by contrast, stops the counting of days dead in its tracks. If a toll lasts 42 days, they you add 42 days to the date the statute of limitations would have otherwise expired.

So. Big difference. And one that I addressed here back on October 6th with an update for Justice Whalen’s opinion.

The argument that Justice Whalen made was that Executive Law § 29-a only gave permission to the governor to suspend, not to toll, and that tolling exceeded that authority.

Executive Law § 29-a(2)(d) provides that an Executive Order “may provide for the alteration or modification of the requirements of such statute, local law, ordinance, order, rule or regulation suspended, and may include other terms and conditions.” 

The issue came to a head yesterday in Brash v. Richards, where the time time to file a Notice of Appeal was blown. The statute calls for filing this within 30 days of being served with it. That took place on October 2, 2020. Then the Governor lifted the suspension/toll on November 3rd. The Notice of Appeal was then filed November 10th, beyond the 30 day limit, requiring the lawyer to argue this was a permissible toll and not a suspension.

Again, it sucks to be a test case.

The court held that this was a toll, notwithstanding the lack of clarity in the Governor’s orders by referring to it sometimes as a suspension and other times as a toll. Why? Because he has the power not only to suspend, but also to alter or modify statutes. The 30-day time period to file a Notice of Appeal started to run, therefore, on November 3rd, and filing it on November 10th was well within the 30 days.

So, there you have it. The Executive Orders resulted in a tolling of the statutes of limitations from March 20 until it ended on November 3, 2020. A period of 228 days if my my quick Google calculation is correct.

Unless, of course, a different appellate court in New York rules otherwise or the Court of Appeals reverses.

It sucks to be a test case.