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  • Posted on: Jun 4 2021

It is an understatement to say that the impact of the COVID-19 pandemic on all aspects of life was far reaching.  This Blog has written numerous articles specifically addressing the impact of COVID-19 on the New York court system and its litigants.  Among others, [Here], [Here] [Here], [Here], [Here], [Here], [Here], [Here], [Here], [Here], [Here], [Here] and [Here].  Today, this BLOG will discuss Brash v. Richards, a case decided on June 2, 2021, by the Second Department.  As discussed further herein, Brash held that Governor Cuomo’s COVID-19 Executive Orders (the “Executive Orders”) “tolled” court filing deadlines as opposed to “suspending” them.  This distinction is critical for litigants.

The Brash Court explained the difference between a “toll” and a “suspension” as follows:

A toll suspends the running of the applicable period of limitation for a finite time period, and “[t]he period of the toll is excluded from the calculation of the [relevant time period]” (Chavez v Occidental Chem. Corp., 35 NY3d 492, 505 n 8 [2020]; see Foy v State of New York, 71 Misc3d 605 [Ct Cl] [2021]). “Unlike a toll, a suspension does not exclude its effective duration from the calculation of the relevant time period. Rather, it simply delays expiration of the time period until the end date of the suspension” (Foy v State of New York, 71 Misc3d at 608).  

(Hyperlink and some brackets added.)

The Executive Law authorizes the Governor to issue executive orders, including those like the ones issued relating to the pandemic.  Executive Law § 29-a(1) provides that “[s]ubject to the state constitution, the federal constitution and federal statutes and regulations, the governor may by executive order temporarily suspend specific provisions of any statute, local law, ordinance, or orders, rules or regulations, or parts thereof, of any agency during a state disaster emergency, if compliance with such provisions would prevent, hinder, or delay action necessary to cope with the disaster.”  Executive Law 29-a(2)(d), which places limitations on the “suspensions pursuant to subdivision one of this section,” provides that “the order may provide for such suspension only under particular circumstances, and 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.”

On March 20, 2020, the first related Executive Order (No. 202.8) was issued by the Governor, by which certain time limits were “temporarily suspended or modified” and “tolled” for 30 days.  “Governor Cuomo later issued a series of nine subsequent executive orders that extended the suspension or tolling period, eventually through November 3, 2020.”  Brash, at page 2.  Not all of the related Executive Orders, however, used the word “toll.”  Brash at p. 2.  However, they all contained identical or “nearly identical” language indicating 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 orders.’”  Brash at p. 3.  The Executive Orders issued on October 5, 2020, and November 3, 2020, which both use the term “toll,” indicate that the “toll” will no longer be in effect after November 3, 2020. 

Questions abounded as to whether the Executive Orders effectuated a “toll” or a “suspension” of applicable filing deadlines.  Again, the Second Department in Brash, held that the Executive Orders effectuated “tolls” of filing deadlines.

Brash involved the timeliness of the filing of a notice of appeal.  The respondent in Brash served a copy of an order with notice of entry on October 2, 2020, and appellant’s related notice of appeal was served on November 10, 2020.  Pursuant to CPLR 5513(a), a notice of appeal must be served within 30 days of service of the judgment or order appealed from with notice of entry.  If the Executive Orders effectuated a “toll”, the appeal would be timely, as the appellant would have had 30 days from November 3, 2020, to file a notice of appeal.  If the Executive Orders, merely, effectuated a suspension, the appellant’s time to file a notice of appeal would have expired on or about November 3, 2020.  Accordingly, appellant argued in favor of “toll” and respondent argued in favor of “suspension.” 

Respondent further urged that while some of the Executive Orders contained “toll” language, Executive Law § 29-a did not permit Governor Cuomo to issue “tolls” but only “suspensions”.  The Brash Court found respondent’s argument in this regard “unpersuasive,” holding that the language of Executive Law 29-a(2)(d) “authorized the Governor “to do more than just ‘suspend’ statutes during a state disaster emergency; he or she may ‘alter[]’ or ‘modif[y]’ the requirements of a statute, and a tolling of time limitations contained in such statute is within that authority.”  Brash, at 3 to 4 (citing to Foy).  The Brash Court further found that even though most of the Executive Orders did not use the term “toll,” they used the term “modification” and “[s]ince the tolling of a time limitation contained in a statute constitutes a modification of the requirements of such statute within the meaning of Executive Law § 29-a(2)(d), these subsequent executive orders continued the toll that was put in place by Executive Order (A. Cuomo) No. 202.8 (9 NYCRR 8.202.8).”

For similar reasons, the Court of Claims, in Foy, supra, held that the Executive Orders effectuated a “toll” as opposed to a “suspension”.

While the Second Department made its position clear, the Court of Appeals will likely opine on this issue at some point in the future.

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