It’s Official: The Statute of Limitations Was Tolled, Not Suspended, During the COVID-19 Pandemic

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By Jarrett M. Behar

Now that the Spring of 2023 is almost upon us, no one wants to think back to the time during the height of the COVID-19 Pandemic.  That includes the various Executive Orders issued by then-Governor Cuomo extending the expiration of statutes of limitations between the 228-day  period of March 20, 2020 and November 3, 2020 (9 N.Y.C.R.R. 8.202.8, 8. 202.67).  Those Executive Orders led to the question of whether the statute of limitations was simply suspended during that period or tolled.  The difference being that a suspension does not exclude its effective duration from the calculation of the relevant time period and a toll does.

On June 2, 2021, the Appellate Division, Second Department issued its decision in Brash v. Richards, 195 A.D.3d 582 [2d Dep’t 2021], which held that Governor Cuomo had the authority to issue a toll and that the thirty day period from which to take an appeal that would have expired during the pendency of the Executive Orders was tolled such that the appellant had 30 days from November 3, 2020, the end of the Executive Order period, to file its notice of appeal.  Id. at 583.  In the wake of Brash, however, there was an open question as to whether its holding was limited to time periods that would have expired during the Executive Order period.  See, e.g., Baker v. 40 Wall Street Holdings Corp., 74 Misc.3d 381, 383 [Sup Ct. Kings County 2022]; Cruz v. Guaba, 74 Misc.3d 1207(A), 2022 N.Y. Slip. Op. 50077(U) [Sup. Ct. Queens County Feb. 7, 2022]; Barry v. Royal Air Maroc, 2022 WL 3215050, at *4 [S.D.N.Y. July 8, 2022], adopted, 2022 WL 3214928 [S.D.N.Y. Aug. 9, 2022].

Earlier this month, the Second Department put that argument to bed when it issued its decision in McLaughlin v. Snowlift, Inc., 2021-05769, ___ A.D.3d ___ [2d Dep’t Mar. 8, 2023].  In McLaughlin, in affirming the denial of a motion to dismiss on renewal after the initial motion was granted pre-Brash, the Second Department unequivocally stated that its decision in Brash v. Richards conclusively “held that the executive orders ‘constitute a toll’ of the filing deadlines applicable to litigation in New York Courts.”  In addition, the Second Department cited to analogous decisions in the Appellate Division, First Department (Murphy v. Harris, 210 A.D.3d 410 [1st Dep’t 2022]) and Third Department (Roach v. Cornell University, 207 A.D.3d 931 [3d Dep’t 2022]).  Thus, with the unanimity among the various Departments, it appears unlikely that this issue will reach the Court of Appeals or that, if it did, a contrary result would be reached.

As a result, any statute of limitations that began to run and did not expire prior to March 20, 2020 will have 228 days added on to it.  Any statute of limitations that began to run during that tolling period will have the amount of days between the date of accrual and November 3, 2020 added on to it.   So, for example, the six-year statute of limitations for a breach of contract action that accrued on March 19, 2020, will now not expire until after November 2, 2026.  In addition to generally extending the statute of limitations, the tolling also significantly affects document and electronically stored information retention polices, which should now be extended to compensate for the extended time period under which liability can now be sought.  For potential litigants, the finding that the Executive Orders definitively constitute a toll is just another way that the COVID-19 Pandemic will continue to linger.

Jarrett M. Behar is Co-Chair of the Litigation Group at Certilman Balin Adler & Hyman, LLP.