Empty Foley Square in Manhattan during coronavirus pandemic. Photo: Ryland West/ALM

The coronavirus pandemic has posed unique and unprecedented challenges for the court system. Courts, by their nature, typically require people to come in close contact with each other to function. Lawyers frequently congregate in courtrooms, sometimes by the hundreds. Jurors sit in proximity with one another, and with court personnel, during trials. Personal contact is also essential outside the courthouse. Lawyers must sit in conference rooms with each other, with clients for meetings, and with adversaries and witnesses for depositions. Many of us also are accustomed to coming to offices in the morning and having close contact with colleagues throughout the day.

These kinds of interactions, in which we all have engaged without a second thought for so long as we have practiced, now pose grave medical risks, and must be avoided or strong safeguards put into place.

For these and other reasons, COVID-19 has largely precluded the courts from conducting routine operations in the ways they ordinarily would. Because of these challenges, the New York State government and court system have had to implement a number of measures to account for the "new normal" we are facing. In this column, we will review some of the most significant of these measures, and offer some of our thoughts about what to expect as we go forward.

Executive Order 202.08

Perhaps the most significant response to COVID-19 relating to the operations of the court system has been Governor Andrew Cuomo's Executive Order 202.08, which was issued on March 20, 2020. The order, by its terms, operated to "temporarily suspend or modify, for the period from the date of this executive order through April 19, 2020" a number of legal requirements, including the following:

[A]ny 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…

The scope of deadlines tolled by this language is extremely broad. It includes, most significantly, statutes of limitations for the commencement of civil actions; the service of any "notice," such as a notice of claim or notice of intention to make claim with the state of New York; a defendant's time to interpose an answer; and the time to file motions, including for summary judgment in cases where the note of issue has been filed and the time to so move has begun to run.

The order provides that these deadlines are "tolled." The concept of a "toll" has an established legal meaning. As relevant here, Black's Law Dictionary defines a "toll" as "Of a time period, esp. a statutory one…to stop the running of; to abate." See Black's Law Dictionary (11th ed. 2019). In other words, the time encompassed by a tolling period does not count against the applicable statute of limitations. By way of illustration, CPLR 208 provides for "tolls" of statutes of limitations for infancy and insanity. For infants, the statute is tolled—meaning it does not run—until they turn 18 years of age, and then they have three years to commence a claim. For persons claiming a mental disability, the statute of limitations ceases to run during the period of the disability. They then have either three years from the cessation of the disability, or "if the time otherwise limited is less than three years, the time shall be extended by the period of disability."

The ultimate length of the COVID-19 tolling period is still, as of the time this column is being filed, uncertain. It is important to review each subsequent executive order to ascertain how it affects prior orders, including tolls. The original Executive Order 202.08 tolled statutes of limitations and other deadlines from March 20, 2020, until April 19, 2020. The toll was subsequently extended to May 7, 2020 (see Executive Order 202.14); then to May 15, 2020 (see Executive Order 202.18); and then, most recently, to June 7, 2020 (see Executive Order 202.28).

Once the toll expires, litigants will have whatever amount of time remained on their statute of limitations or other deadline they did when it commenced. For example, if a plaintiff had 30 days left to file a lawsuit on March 20, he will have 30 days from whatever day the toll expires to do so. For a person injured during the tolling period, his or her time to file will not commence until it is over.

It is important to remember, however, that the way the toll operates is subject to potential change. The toll is created by executive order, in response to an emergency. It therefore can potentially be modified or even conceivably curtailed once the emergency has ended by further order. It is at least possible that, with sufficient notice to affected parties, the governor could, in the future, decide to incorporate a sunset into the toll, restricting the tolling provisions on actions not yet commenced.

Notarization

Another extremely important allowance the governor has made based on the pandemic concerns the circumstances under which a signature can be notarized. Typically, of course, a person must be physically present before a notary in order for his or her signature to be notarized. But for the time being, signatures may be notarized remotely, provided certain conditions are met. See Executive Order 202.7. The most significant of these conditions are: (1) the notary must witness, by video conference, the signing of the document; (2) the signatory must physically be located in the State of New York, and must represent as much to the notary; and (3) the signed copy of the document must be sent by e-mail or fax to the notary on the same day it was signed. The notary is permitted to notarize the e-mailed or faxed copy, and does not need to wait for an original signature. This order is currently in effect until June 6, 2020 (as of the time this column has been submitted). It may be extended further.

Medical Malpractice

The governor has also issued a major substantive order concerning the standard of care applicable to certain kinds of medical malpractice cases. Executive Order 202.10 provides that physicians and other kinds of medical professionals "shall be immune from civil liability for any injury or death alleged to have been sustained directly as a result of an act or omission by such medical professional in the course of providing medical services in support of the State's response to the COVID-19 outbreak, unless it is established that such injury or death was caused by the gross negligence of such medical professional."

The order was issued pursuant to the governor's authority under New York State Executive Law §29-a to "temporarily suspend specific provisions of any statute" when they would hinder the response to a disaster emergency. The law allows the governor, when he is suspending statutory requirements, to provide for the "alteration or modification of the requirements of such statute." See Executive Law 29-a(2). The suspension must provide for the "minimum deviation from the requirements of the statute" deemed necessary to address the emergency.

The medical malpractice order, on its face, modifies three statutory provisions of the New York State Education Law:

• Section 6527(2), which provides that "any licensed physician who voluntarily and without the expectation of monetary compensation renders first aid or emergency treatment at the scene of an accident or other emergency" can be held liable only for gross negligence. The provision further provides that "[n]othing in this subdivision shall be deemed or construed to relieve a licensed physician from liability for damages for injuries or death caused by an act or omission on the part of a physician while rendering professional services in the normal and ordinary course of his practice."

• Section 6545, which extends the protection for emergency services rendered without expectation of compensation to physician's assistants; and

• Section 6909(1), which extends that protection to nursing professionals as well.

The executive order does not cite any other provisions of law that are suspended or modified in order to effectuate the medical malpractice directive.

While it is not our purpose in this column to make a case either for or against the legality of any particular order, we note that Executive Order 202.10 is highly likely to be the subject of future litigation as to the extent of its enforceability. The Order purports to set out a standard of care broadly applicable to medical professionals providing services in support of "the State's response to the COVID-19 outbreak." This language is itself open to interpretation as to what a medical professional must be doing to fall within its scope. More fundamentally, this modification of the standard of care does not necessarily appear to represent a "suspension" of any existing statutory or regulatory requirement, as required by Executive Law §29-a. No requirement of the Education Law has actually been suspended at all. The Order merely purports to apply the gross negligence standard to very different sets of circumstances. One could argue that the Order represents a legislative modification of a common law standard of care, rather than an exercise of the authority conferred by the Executive Law to suspend a statutory requirement. The courts undoubtedly will be called upon to address these issues in the future.

The Road Ahead

As of the time of this writing, the courts have begun to open back up for virtual operations. Until recently, there was a moratorium in place on filings in cases considered "non-essential," a category encompassing most kinds of actions pending in the court system. That moratorium has now been lifted, meaning that litigants again can make and respond to motions, and file other kinds of documents with the courts. The courts are not yet accepting filings of most kinds of new actions, but it possible that moratorium will be lifted soon.

Litigants have begun to conduct depositions and private mediations, primarily, in our experience, by use of Zoom. The courts have also begun to conduct conferences, particularly settlement conferences, remotely. The court system has adopted the Skype for Business platform for its conferences, rather than Zoom. It therefore behooves all attorneys who litigate with regularity to familiarize themselves with both programs.

We have been asked by many lawyers what we expect will happen in the future. Obviously, the current situation which we, as a society and a legal community, are facing is virtually unprecedented. After 9/11 and Hurricane Sandy, the courts were significantly disrupted – but the disruptions were confined to relatively discrete time periods, after which, normal operations were generally able to resume. Now, we do not know how long it will be before the courts will be able to conduct in person appearances with lawyers, let alone to impanel juries. It clearly will be a long time before we are able to conduct civil jury trials. In the short term (and perhaps for longer), we expect that there will be greater reliance upon mediations to settle cases, and that litigants will be required to give greater consideration to binding arbitrations and bench trials than they otherwise might have.

In the long term, there may be significant cultural shifts. Law firms which previously had resisted remote work by their employees are now considering whether it is feasible for them to allow it to a greater extent in the future. Some may find that it is more feasible than they anticipated; some undoubtedly will not, and will relish the day they can return to their offices and physical case files full time. The courts also may integrate virtual appearances into their dockets, even once the current health risks subside. Virtual appearances can certainly be more efficient for the attorneys, at least for routine scheduling conferences and the like.

For substantive motion arguments and appeals, many advocates may still prefer the opportunity to address judges directly. A remote appearance spares the attorney the need to travel, and ensures that she or he will not need to wait in a crowded courtroom for an adversary to arrive, and then for an additional period of time to see the court. For the courts, many judges will find that working remotely is very effective. It will be interesting to see how successful remote conferences will prove to be during the period they are necessary. The courts have dealt ably, diligently, and creatively with a unique set of circumstances—and largely because of that, litigants will continue to have access to the courts while the pandemic is ongoing. The long-term ramifications of COVID-19 for the courts will only be known with time.

Robert S. Kelner is senior partner at Kelner and Kelner. Gail S. Kelner and Joshua D. Kelner are attorneys with the firm.