March 24, 2020
As New York State and City continue to grapple with the COVID-19 pandemic, affecting all aspects of life and work including the legal system, two orders issued over the weekend have significantly increased the effect on pending and potential litigation in New York and possibly beyond. On March 20, 2020, Governor Cuomo signed an executive order tolling most time limits under New York law until April 19, 2020 (the “Tolling Order”). On March 22, 2020, the Chief Administrative Judge of the New York State Courts signed an order essentially prohibiting court filings (electronic and paper) in any matter not listed as an “essential matter,” which was “effective immediately and until further order” (the “Administrative Order”). The impact of these orders is potentially far-reaching—including possibly affecting statutes of limitations and repose deadlines for actions in New York State courts as well as potentially in federal and out-of-state courts—but the scope and application of these orders remains subject to a number of questions, differing interpretations and possible challenges.
In recent weeks, many courts and judges have issued orders and changes to their local rules and individual practices in response to the evolving circumstances surrounding COVID-19, including changes aimed at limiting in-person court attendance or other in-person litigation proceedings, such as depositions, or providing certain limited extensions to existing case deadlines. The orders issued over the weekend by Governor Cuomo and the Chief Administrative Judge of the New York State Courts go considerably further. The orders provide in relevant part that:
The impact of these orders is potentially far-reaching but subject to a number of open questions.
First, the way in which the Tolling Order may apply under different circumstances is subject to multiple interpretations, and affected parties may take different positions before different courts—potentially leading to inconsistency across cases absent further guidance. Further, at least for litigation pending in New York State courts, it appears that any disputes about the application of the Tolling Order will not be briefed or decided until after the Administrative Order is lifted and filings can once more be submitted.
A few initial broad possibilities come to mind:
Second, perhaps the most significant aspect of these recent orders is the potential impact on deadlines based on New York statutes of limitations (SOL) and statutes of repose (SOR)—but it is possible that the Tolling Order could be subject to challenge on that basis or to judicial clarification that limits any such impact. As written, the Tolling Order appears to include SOL and SOR deadlines—but it is possible that its broad scope will be subject to challenge and/or interpreted more narrowly by a court.
For example, the Tolling Order indicates that is pursuant to Section 29-a of article 2-b of the Executive Law, which provides that “[s]ubject to the state constitution, the federal constitution and federal statutes and regulations, the governor may by executive order temporarily suspend any statute, local law, ordinance, or orders, rules or regulations, or parts thereof, of any agency during a state disaster emergency [which includes epidemics], if compliance with such provisions would prevent, hinder, or delay action necessary to cope with the disaster or if necessary to assist or aid in coping with such disaster.” (emphasis added). Further, Section 29-a provides that the governor may extend the suspension for additional 30-day periods.
The scope of executive authority under Section 29-a of the Executive Law has rarely been addressed by the courts. In a decision related to the attacks of September 11, 2001, a New York court held that executive orders issued by then-Governor Pataki after the attacks, suspending or modifying the “speedy trial” statute, were constitutional. See People v. Haneiph, 745 N.Y.S.2d 405 (Sup. Ct. Kings Cnty. 2002). The court recognized in that case that “[t]he constitutional principle of separation of powers, implied by the separate grants of power to each of the coordinate branches of government, requires that the legislature make critical policy decisions, while the executive branch’s function is to implement those decisions,” but went on to note that “[d]espite this functional separation, the Court of Appeals [as the highest court of the State of New York] has recognized that the duties and powers of the various branches of government cannot always be completely separated” and “has acknowledged that there need not always be a specific legislative directive authorizing a particular executive act as long as the basic policy decisions underlying the regulations have been made and articulated by the Legislature.” Id. at 408-09 (internal quotation marks and citations omitted). The court further noted that there was a statutory exception for the “speedy trial” requirement (which requires that a criminal case be dismissed if the prosecutors are not ready for trial within 90 days when a defendant is charged with a misdemeanor punishable by a sentence of more than three months) when “exceptional circumstances” are present. Id. at 409. The court also observed that “it is the duty of the courts to adopt construction of a statute that will bring it into harmony with the Constitution, if the statutory language will permit.” The court concluded that the New York Governor had not “usurp[ed] the functions of the legislature in issuing the executive orders” and that the latter were constitutional, because “[o]ne can hardly think of an event that fits the definition of an exceptional circumstance more closely than the September 11th attack.” Id.
Here, it is possible that a party could argue that the Governor acted outside the scope of his authority under Article IV of the New York State Constitution, but the current atmosphere suggests that such a challenge may be unlikely to gain traction. It is also possible that a court could interpret the Tolling Order in such a way to avoid any potential constitutional issue. A further complication is that, to the extent no filings can be made in New York courts in light of the Administrative Order, any challenges to the Tolling Order in connection with a New York State case would come after the fact. As a result, affected parties whose deadlines had otherwise elapsed would likely argue that, whether or not the order was constitutional, they were entitled to rely on it and their claims should not be barred as a matter of equity.
Third, it remains to be seen how far the scope of the Tolling Order may extend beyond New York State courts. The Tolling Order on its face applies to any time limit that is determined by New York law. As such, any case brought in any court on the basis of New York law could be implicated to the extent New York law applies. This includes cases pending in federal courts and other states. It is unclear whether federal courts and other state courts will actually enforce the Tolling Order—an issue which may require federal and other state courts to determine whether the Tolling Order constitutes substantive New York law that they should apply, in addition to the separation of powers issues noted above.
It is clear that the recent orders will have a significant impact on litigation brought under New York law and cases pending in New York State courts. A number of questions and uncertainties may arise, particularly as to the scope of the tolling instituted by Governor Cuomo’s executive order. Interestingly, those issues may potentially end up being disputed and addressed in federal courts or other state courts, given that New York State courts are now in a holding pattern as a result of the Administrative Order.