Executive Order 202.8 -- Is it a "toll" or a "suspension"? Two courts say "toll".
Does Executive Order 202.8, “Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency”, create a “toll” or a “suspension” of certain legal time limitations and what is the distinction between the two? In a nut-shell, this Executive Order temporarily stayed time deadlines during the pandemic for, among other things, the commencement, filing and service of law suits, motions, etc. Although there has been dueling commentary analyzing this issue, we are beginning now to see decisional law addressing it. The Judges in the following two cases opine that the Executive Order "says what it means and means what it says" -- it is a toll. Although the Federal Court punts on the issue of whether the Governor has the authority to enact a toll, the Court of Claims concludes he does.
Lopez-Motherway v. City of Long Beach
2021 WL 965158 (USDC, EDNY March 15, 2021)
Lopez alleges that the City of Long Beach and several of its police officers violated her constitutional rights during her arrest and ultimately unsuccessful prosecution. Among other federal and state claims, she asserts a malicious prosecution claim under N.Y. law. In deciding Defendants’ motion to dismiss the court considered whether Executive Order (“EO”) 202.8, “Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency”, creates a “toll” or a “suspension”, there being a significant legal distinction.
A “toll” means that the limitations period “stops running,” only to start again when the tolling period ends, picking up where it left off. It’s like a “time-out” in a sporting event. In contrast, a “suspension” “simply extends the expiration date of the limitations period to a later defined date on the calendar without re-starting the statute of limitations clock at the end of that period.
In regard to the state-law malicious prosecution claim, the defendants argued that the claim was time-barred. The limitations period is 1 year and 90 days, the cause of action accruing on the date that the proceeding terminated in favor of the plaintiff (7/31/19). As such, the limitations period would have expired on 10/29/20, nearly one month before plaintiff commenced this case on 11/20/20. In most circumstances, the analysis would end there. However, in the middle of the limitations period, the COVID-19 pandemic struck. The governor issued his EO 202.8, purporting to “toll” the statute of limitations effective 3/20/20:
NOW, THEREFORE, I, Andrew M. Cuomo, Governor of the State of New York, by virtue of the authority vested in me by Section 29-a of Article 2-B of the Executive Law to temporarily suspend or modify any statute, local law, ordinance, order, rule, or regulation, or parts thereof, of any agency during a State disaster emergency, if compliance with such statute, local law, ordinance, order, rule, or regulation would prevent, hinder, or delay action necessary to cope with the disaster emergency or if necessary to assist or aid in coping with such disaster, I hereby temporarily suspend or modify, for the period from the date of this Executive Order through April 19, 2020 the following:
In accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis, any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate's court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020 [italics added].
The governor extended the 4/19/20 deadline in a series of subsequent EOs before setting a final deadline of 11/3/20 in EO no. 202.67 (10/4/20). Despite this warning, the plaintiff waited until 11/20/20 to commence this action.
A legal question exists whether these EOs “tolled” or “suspended” the statute of limitations. This distinction determined the timeliness of plaintiff's claim. If the EO stopped the clock from running (was a toll), the plaintiff had additional time when the clock restarted on 11/3/20. The time period would have been tolled from 3/20/20 (when the EO period began) until 11/3/20 (when the EO period ended) = 228 days. Between 7/13/19 (date of accrual) until the date the toll started (3/20/20) = 232 days. The plaintiff had a 1 year 90 day SOL = 455 days. 232 days of her SOL had been exhausted by 3/20/20. As such, she had 223 days remaining on 11/3/20 (the date the EO period ended) as the deadline to commence her action (someone let me know if my math is wrong). Making her action timely when she commenced it on 11/20/20.
But if the EO merely stopped the clock from buzzing until 11/3/20 (if it was a suspension), then her time to file simply expired on that date.
As such, the parties wanted the court to decide two issues: (1) whether EO 202.8 imposed a “toll” rather than a “suspension” and, if so, (2) whether the governor had the power to toll the statute of limitations. Complicating the matter even more, the court noted that both the Supreme Court of the United States and the N.Y. Court of Appeals have described “tolls” as a form of “suspension.”
On the first issue of interpreting the EO, the court said it must begin its analysis with examining the text of the EO. The plain text of EO 202.8 states that the statute of limitations “is hereby tolled.” That language differs from past EOs, which “temporarily suspended” the statute of limitations, such as EO No. 52 (10/31/12 addressing Hurricane Sandy). The court concluded that by using “tolled,” EO 202.8 “says what it means and means what it says”. However, this apparently is dicta as the court then punted.
The court said that it is far less clear whether the governor had the power to toll the statute of limitations. The governor issued EO 202.8 under N.Y. Executive Law § 29-a. That statute gives the governor two important powers. First, it authorizes the governor to “temporarily suspend any statute...if compliance with such provisions would prevent, hinder, or delay action necessary to cope with a disaster or if necessary to assist or aid in coping with such disaster”. Second, it allows “[t]he governor, by executive order, [to] issue any directive during a state disaster emergency declared in...[a] disease outbreak...necessary to cope with the disaster.” Defendants focused on the first provision, contending that it limited the governor to suspensions. According to the plaintiff, this second provision allowed the governor to toll the SOL.
The court dodged deciding the issue saying that it need not resolve this conflict. The claim arrived by way of supplemental jurisdiction, and a district court “may decline to exercise supplemental jurisdiction” if a claim “raises a novel or complex issue of State law.” 28 U.S.C. § 1367(c)(1). “[P]rinciples of federalism and comity may dictate that these questions be left for decision by the state courts” – and that is “especially” true “where those questions concern the state's interest in the administration of its government.” The court said that this case fits comfortably within that framework. While many of the EOs have been highly litigated, this particular one has not. The parties have not cited a single case from the N.Y. Court of Appeals or Appellate Divisions that addresses the governor's power to toll the SOL. Instead, they cite dueling commentary, thought to be too thin a reed to support a decision on this sensitive issue. Therefore, the court declined to exercise supplemental jurisdiction over the state-law claim for malicious prosecution, dismissing it without prejudice to the plaintiff pursuing it in state court.
Foy v. The State of N.Y.
2021 WL 866035 (N.Y. Ct. Cl. Feb. 16, 2021)
In this decision the Court of Claims concluded that the governor has the authority to enact a toll through an Executive Order.
The Claimant brought this action seeking to be reinstated to his position as a N.Y. State court officer and for money damages for his alleged wrongful termination on 2/18/20. Defendant moved to dismiss the claim, among other things, on the grounds that the claim was not timely filed or served.
Under Court of Claims Act § 10 the claim for wrongful termination had to be filed and served within 90 days of the accrual date of 2/18/20. The claim, however, was not filed until 7/21/20, and not served until 11/17/20, nearly nine months after the date of accrual. The claimant argued, however, that he is afforded additional time to file and serve his claim by Executive Order (“EO”) 202.8 issued on 3/20/20 by Governor Cuomo in response to the COVID-19 public health emergency. The EO was extended seven times until it ultimately expired on 11/3/20. The EO was issued pursuant to authority vested in the Governor by Executive Law § 29-a.
The court said that the EO is clear in stating that any specific time limit for the commencement of any legal action is tolled. A toll suspends the running of the applicable period of limitation for a finite time period, in this instance until 11/3/20, and “[t]he period of the toll is excluded from the calculation of the time in which the [claimant] can commence an action.” The amount of time covered by the original EO and all extensions is 228 days. The number of days between when the claim accrued (2/18/20), and when claimant accomplished service on 11/17/20, is 273 days. Subtracting the period of the toll (228 days) from the period of time between accrual and service (273 days) results in a difference of 45 days. Therefore, on 11/17/20, 45 days remained before the expiration of time to serve and file the claim.
A number of commentators have noted that the authority afforded the governor by Executive Law § 29-a (1) is to “temporarily suspend any statute” and that the statute does not specifically authorize a toll and that a suspension of a period of limitation is fundamentally different from a toll. 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. Thus, if the EO in question worked a suspension rather than a toll, any time period affected by those orders expired on 11/3/20. As such, the claim here, served on 11/17/20, would be untimely.
However, the court concluded that EO 202.8 provides for a toll, as do EO 202.67 and EO 202.72, the last two executive orders addressed to time limits for the commencement, filing or service of a legal action. Thus, it is clear that a toll, and not a suspension, was intended and the question becomes whether the statute authorizes a toll. The court concluded that it does.
In this regard, the court then examined the legislative intent of the statute ascertained from the words and language used, construing it according to its natural and most obvious sense without resorting to an artificial or forced construction. A statute must be construed as a whole reading the various sections together to determine the legislative intent. In that regard, consideration must be given to the language in Executive Law § 29-a (2) which provides that “[s]uspensions pursuant to subdivision one of this section shall be subject to the following standards and limits” and in paragraph “d” of subdivision two, which provides that the implementing EO “... 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”. The language in subdivision two, paragraph “d” makes clear that something other than a straightforward suspension of a statute is authorized. The governor is also permitted to modify the terms and conditions of a statute. Here, EO 202.8, and its successors, can reasonably be characterized as implementing a temporary alteration of the timely filing and service provisions in Court of Claims Act § 10, a modification. As such, the toll was authorized and the claim is not untimely.