More on Executive Orders, Tolls and Suspensions
Despite the language in Brash v. Richards that the Governor's executive orders "constitute a toll of such filing deadlines," a recent case from Kings County has stated that in fact, the case "imposed a suspension, not a toll."
February 23, 2022 at 10:00 AM
7 minute read
Civil ProcedureIn a prior Law Journal article titled A Personal Injury Roundup, I touched upon the issue of whether the Governor's Executive Orders effectuated a stay or a toll. At the time, I believed the subject was resolved by Brash v. Richards, 195 A.D.3d 582 (2d Dept. 2021), in which the Second Department unambiguously stated that "the subject executive orders constitute a toll of such filing deadlines." A recent case from Kings County, however, states that despite the foregoing language, Brash v. Richards in fact "imposed a suspension, not a toll."
As T.S. Eliot wrote, "We shall not cease from exploration, and the end of all our exploring will be to arrive where we started and know the place for the first time." T.S. Eliot, Little Gidding, Four Quartets (1943). So in the spirit of legal exploration, we circle back to Brash v. Richards and the subject of tolls, stays, and suspension. On our journey we explore a seminal case by the Hon. Richard E. Sise, Presiding Judge, New York State Court of Claims, which serves as an exegesis for the weary legal researcher, with the goal of achieving a greater depth of understanding of Brash v. Richards.
'Foy'
In Foy v. State of New York, 71 Misc.3d 605 (Ct. Cl. 2021 (Richard E. Sise, J.)), which involved an alleged wrongful termination of employment, the claim had to be filed within 90 days of accrual (Court of Claims Act §10). The claim accrued Feb. 18, 2020 and should have been filed by May 18, 2020; it was not filed until July 21, 2020, and not served until Nov. 17, 2020, nearly nine months after the date of accrual. The issue presented was the effect of the various Executive Orders that either "tolled" or "suspended" various laws from March 20, 2020 to Nov. 3, 2020, a period of 228 days.
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