The Scope of the COVID-19 Toll of CPLR Time Limits in New York

Cary Stewart Sklaren published an article, “The Scope of the COVID-19 Toll of CPLR Time Limits in New York,” in the New York State Law Digest (Aug. 2020) of the New York State Bar Association.

On March 20, 2020, Governor Cuomo issued Executive Order 202.8, which tolls statutes of limitations and various other time limits under the “procedural laws of the state.” He has since extended the toll by a series of Executive Orders, with the toll currently set to run through August 5, 2020 absent further extension. The Executive Order’s use of the word “toll” is significant because it makes clear that the affected time periods do not run at all while the Executive Order is in effect. This is different from the statute of limitations relief granted by executive order in the aftermath of the 9/11 and Superstorm Sandy emergencies, which merely “suspended” the expiration of limitations periods during the pendency of the relevant executive order and thus created the potential for a rush to the courthouse upon the expiration of the suspension. While the import of a “toll” appears clear, what is somewhat less clear is the scope of the COVID-19 toll, i.e., precisely what time limits are tolled in addition to statutes of limitations.

Although the language of Executive Order 202.8 creates a certain amount of ambiguity – which is hardly surprising given that this was an emergency measure issued under intense pressure at the height of New York’s COVID-19 crisis – the Order’s language supports the conclusion that it tolls the expiration of all time limits under the CPLR. Interpreting the Executive Order in this manner is necessary, moreover, to give effect to the clear intent of the Order – to create time and space for the state’s courts and practitioners to deal with the effects of the COVID-19 emergency. That said, careful practitioners will take note of the ambiguities discussed below and enter into stipulations or take other measures to protect their clients against sharp practice by adversaries and the possibility that a court may take a more restrictive view of the toll’s scope.

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