On June 2, 2021, the Appellate Division, Second Department helped ease the minds of litigants and their attorneys by ruling that Governor Andrew Cuomo's COVID-19 Executive Orders (EOs), particularly EO No. 202.8 and subsequent EOs extending No. 202.8, toll rather than suspend the running of the applicable statutory limitations periods. The importance of this decision and order cannot be overstated. Had the court found otherwise, hundreds, if not thousands, of filings in the Second Department would have been time barred as of Nov. 4, 2020, a day after the tolling period ended pursuant to EO No. 202.72 on Nov. 3, 2020.

'Brash' Facts

The relevant facts in Brash v. Richards, 2021 NY Slip Op 3436, are straightforward. The plaintiff/appellant filed a notice of appeal on Nov. 10, 2020 of an order entered on Oct. 2, 2020 that was served with notice of its entry on Oct. 2, 2020. Defendants/respondents moved to dismiss the appeal on several grounds including that the appeal was untimely because it was taken after the Nov. 3, 2020 expiration of Cuomo's EOs suspending filing deadlines. In opposition, plaintiff argued that the appeal was timely because the EOs tolled rather than suspended filing deadlines.

The court began its analysis by highlighting the important distinction between a suspension and a toll. 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, on other hand, does not exclude its effective duration from the calculation of the relevant time period. Instead, it delays expiration of the time period until the end date of the suspension.