One of the many lasting impacts of the COVID-19 pandemic is the lengthy tolling of statutes of limitations and legal deadlines. On March 20, 2020, Governor Cuomo issued Executive Order No. 202.8 to extend deadlines “for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding as prescribed by the” CPLR. Subsequent Executive Orders extended the duration of Executive Order 202.8. Since Executive Order No. 202.8 was issued, lower courts were divided on its impact, holding that the Executive Order either: (1) tolled deadlines by the number of days that the Executive Order was in effect; or (2) suspended all deadlines until the expiration of the Executive Order on November 3, 2020. In Brash v. Richards, the Second Department was the first Appellate Court to weigh in on the issue, and it held that the Executive Order is a tolling provision, suspending the running of the applicable period of limitation during the pendency of the Executive Order. In other words, the 228 days that the Executive Order was in effect are added to the original deadlines (or such lesser time for claims or other time periods that accrued after the Executive Order went into effect).
In Brash, the Second Department analyzed whether a notice of appeal was timely served in light of the Executive Order. The order to be appealed was entered on October 2, 2020, and in normal circumstances, notices to appeal must be filed within 30 days of entry. The appellant served its notice of appeal on November 10, 2020, 39 days after the order was entered and one week after the Executive Order expired.
Respondent argued that the filing was untimely because the Executive Order merely suspended deadlines until its expiration date of November 3, 2020. In contrast, the appellant contended its deadline to file a notice of appeal was tolled until November 3, 2020, and the 30-day clock did not start to run until that date.
The Second Department agreed with the appellant and determined that the Executive Order tolled deadlines. The Court held that the Executive Order “expressly and plainly” provided that the subject time limits were “hereby tolled.” The confusion and differing interpretations were borne out of the unclear language of the Governor’s subsequent orders that extended the duration of the Executive Order. The Second Department pointed out that although some of these extension orders failed to use the word “toll,” they either: (1) 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 Order; or (2) used nearly identical language to that effect. As such, these subsequent orders continued the toll established in the Executive Order.
The Brash decision provides clarity on how the courts in the Second Department will interpret the Executive Order. However, this decision is not binding precedent in the First, Third, and Fourth Departments. While we expect the other Appellate Departments will follow the Second Department’s reasoning, it is best to calculate deadlines conservatively under both competing interpretations until these courts weigh in.