2nd Dept.: Executive Orders Are a “Toll”, Not a “Suspension”

A recent decision, Brash v. Richards, 2021 NY Slip Op 03436 (N.Y. App. Div. 2nd Dept. June 2, 2021), held that a series of Executive Orders issued by Governor Cuomo in light of the COVID-19 pandemic constitute a “toll”, rather than a “suspension”, of certain filing deadlines. As a result, it held that the appeal at issue in this case was timely filed.

The court explained that while “[a] toll suspends the running of the applicable period of limitation for a finite time period, and the period of the toll is excluded from the calculation of the relevant time period”, a suspension “does not exclude its effective duration from the calculation of the relevant time period” but “simply delays expiration of the time period until the end date of the suspension.”

In this case, a copy of the order appealed from was served on the appellant on October 2, 2020. Per CPLR 5513(a), an appeal must be taken within 30 days of service of a copy of the order or judgment appealed from and written notice of its entry. The appellant served and filed a notice of appeal on November 10, 2020.

Under respondent’s “suspension” theory, the notice of appeal was untimely, since it occurred after November 3, 2020. The appellant’s “toll” theory, they had 30 days from November 3, 2020 to file their appeal.

The court agrees with the appellant.

En route to this conclusion, the court, inter alia, rejected the respondent’s argument that the Governor acted beyond his statutory powers:

The respondents contend that even though Executive Order (A. Cuomo) No. 202.8 (9 NYCRR 8.202.8) purported to toll the limitations periods, Governor Cuomo did not have the statutory authority to do so, as Executive Law § 29-a, while expressly granting the Governor the authority to suspend statutes, does not expressly grant the Governor the authority to “toll” them. This contention is unpersuasive. As stated above, Executive Law § 29-a(2)(d) provides that an order issued pursuant thereto “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.” This language in Executive Law § 29-a(2)(d) indicates that the Governor is authorized 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 (see Foy v State of New York, 71 Misc 3d 605).

Furthermore, although the seven executive orders issued after Executive Order (A. Cuomo) No. 202.8 (9 NYCRR 8.202.8) did not use the word “toll,” those executive orders all either 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 orders (Executive Order [A. Cuomo] Nos. 202.14, 202.28, 202.38, 202.48 [9 NYCRR 8.202.14, 8.202.28, 8.202.38, 8.202.48]) or contained nearly identical language to that effect (see Executive Order [A. Cuomo] Nos. 202.55, 202.55.1, 202.60 [9 NYCRR 8.202.55, 8.202.55.1, 8.202.60]). Since 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).

Ultimately, in light of its finding that the Executive Orders constitute a “toll”, the appellant had 30 days from November 3, 2020 to serve and file their notice of appeal, which they did.

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