Blogs

By Brian M. Streicher of Ernstrom & Dreste LLP

Published Fall 2021

For nearly a year, New York attorneys and their clients have been grappling with the ramifications of Governor Cuomo’s Executive Order (“EO”) 202.8, effective March 20, 2020, and its various renewals through November 3, 2020, which “suspended” or “tolled” most civil deadlines, such as statutes of limitations. The EOs appeared to use the words “suspend” and “toll” interchangeably, but there has been considerable debate among practitioners and judges as to whether they are legally distinct concepts, leading to different results.

Some have argued that suspension means that a deadline is not in effect until the expiration of the suspending law (in this case, EO 202.67, which expired on November 3, 2020). Under this view, any civil deadlines that expired between March 20, 2020 and November 3, 2020 (the “Effective Period”) were extended only to November 4, 2020.

Others have argued that EO 202.8 and its renewal through EO 202.67 tolled civil deadlines that occurred during the Effective Period. Under this construction, time does not run during the tolling period, and all impacted deadlines are delayed by up to 228 days, obviously a much longer time period keeping more claims alive.

Both interpretations carried legal support. For example, New York courts after 9/11 and Hurricane Sandy held that EOs were suspensions, not tolls.¹ Other courts, including the New York Court of Appeals² and the Supreme Court of the United States³ have used the terms “suspend” and “toll” interchangeably to mean a true toll. This competing case law added to the confusion regarding the impact of the COVID EOs.

Since the end of the Effective Period, New York courts have resolved this issue in favor of the true toll approach. In Foy v. State of New York,⁴ the Court of Claims held that the statutory 90-day period for filing a claim for reinstatement of employment was tolled by the EOs, reasoning that the use of the term “toll” in EOs 202.8, 202.67, and 202.72 intended a true toll, not a suspension. In In the Matter of the Application of 701 River Street Associates,⁵ the court also found that a foreclosure statute of limitations had not lapsed because “[EOs] provided for tolls [and], such tolls were authorized.” The decisions of the trial courts favoring the tolling interpretation have now found support in the Appellate Division, where the Second Department, in Brash v. Richards,⁶ held that the EOs constituted a toll of filing deadlines. The court reasoned that EO 202.67 reiterated and extended the “toll” described in EO 202.8, thereby “expressly and plainly provid[ing] that the subject time limits were ‘hereby tolled…’” Although there is no case law yet from the other departments or the Court of Appeals, there now appears to be a growing consensus that Governor Cuomo’s COVID-era EOs operated as a toll, rather than a suspension, of various deadlines.

For contractors and their attorneys, these developments are both welcome and significant. Construction law in New York is replete with abbreviated statutes of limitations and filing deadlines, such as the eight-month mechanic’s lien filing deadline found in Lien Law § 10, the oneyear mechanic’s lien foreclosure statute of limitations contained in Lien Law § 17, the ninety-day claim deadline against school districts contained in Education Law § 3813, and the ninety-day tort claim deadline against municipalities found in General Municipal Law § 50-e, among others. It is not uncommon for construction lawyers to learn that these deadlines have come and gone before even receiving the referral from a contractor client. The COVID-era EOs, and their interpretation in the courts as tolls, may offer new life to claims that otherwise were time-barred. This is a positive development, as the point of these EOs was to give businesses the opportunity to address more pressing needs than rushing to the courthouse during the pandemic. Contractors can take some comfort in the fact that the law is trending in the direction of claim survival, rather than claim barring, meaning claims can be decided on the merits rather than on procedural grounds.

1 Scheja v. Sosa, 4 A.D.3d 410 (2d Dep’t 2004); Koebel v. New York State Comptroller, 66 A.D.3d 1307 (3d Dep’t 2009); Randolph v. CIBC World Markets, 219 F. Supp. 2d 399 (S.D.N.Y. 2002).

2 Ratka v. St. Francis Hosp., 44 N.Y.2d 604 (1978); Baez v. New York City Health & Hosps. Corp., 80 N.Y.2d 571 (1992).

3 Artis v. District of Columbia, 138 S. Ct. 594 (2018).

4 71 Misc. 3d 605 (N.Y. Ct. Cl. 2021).

5 EF2021-268027 (N.Y. Sup. Ct., Rensselaer Cnty., April 27, 2021).

6 2021 N.Y. Slip Op. 03436, 2020-08551 (2d Dep’t June 2, 2021).

Brian M. Streicher is an Associate with Ernstrom & Dreste LLP. He is an experienced commercial litigator who assists the firm in representing clients involved in commercial and construction disputes—sureties, contractors, design professionals, property owners, construction manager, and corporations. He can be reached at BStreicher@ed-llp.com or 585.473.3100.