The following papers were considered in connection with defendant’s motion for an order pursuant to CPLR 3211 (a) (5) dismissing plaintiffs’ complaint on grounds of untimeliness: Papers Numbered Notice of Motion, Affirmation, Exhibits A — C 1 Affirmation in Opposition 2 Reply Affirmation 3 DECISION AND ORDER Plaintiffs allege in this action that a series of three flooding incidents that occurred on July 31, 2019, August 3, 2019 and August 12, 2019, caused or contributed to by the Village of Rye Brook, resulted in property damage to basements located at 527 Ellendale Avenue in Rye Brook, New York. This action was commenced by plaintiffs’ filing of the summons and complaint on November 19, 2020. It is defendant’s position in this dismissal motion that plaintiffs’ filing of the summons and complaint on November 19, 2020 was untimely, since CPLR 217-a requires that any cause of action brought against a municipality be filed within one year and 90 days of the occurrence. According to defendant Village, the statute of limitations for a claim regarding the first incident expired on October 29, 2020, the statute for the second incident expired on November 1, 2020, and the limitations period for the third incident ended on November 10, 2020. The November 19, 2020 filing date is past all of those deadlines. Plaintiffs respond that the statute of limitations was tolled by the series of Executive Orders1 issued by the Governor during the COVID-19 pandemic, that were in effect through November 3, 2020, and that those Executive Orders effectively stopped the clock on the running of the statute of limitations until November 4, 2020. They calculate that on March 20, 2020, when the tolling of the statute of limitations began, 133 days remained in which they could timely file their action against defendant Village, and that on November 4, 2020, those 133 days began to run again. In reply, defendant contends that the Governor’s Executive Orders suspended rather than tolled the statute of limitations. As such, the suspension merely created a grace period, applicable to matters whose statutes of limitations would have expired during that period, for which matters the expiration of the statute was effectively paused until the suspension was over, on November 3, 2020. Thus, plaintiffs’ time to commence an action on the first and second incidents would have been suspended until November 4, 2020, and the statute of limitations for the claim on the third incident would still have expired on November 10, 2020. Discussion The question raised by this motion has been addressed by a number of commentators, who have reached different conclusions. While on June 2, 2020, a New York Law Journal article suggested that Executive Order 202.8 and its successors “imposes a toll on all statutes of limitations for the duration of the covered period (see Thomas A. Moore and Matthew Gaier, Toll on Statutes of Limitations During the COVID-19 Emergency, NYLJ, June 2, 2020 at 3, col 1), another article published on October 7, 2020 suggested that the Governor’s Executive Orders merely suspended the statute of limitations (see Thomas F. Whelan, Executive Orders: A Suspension, Not a Toll of the SOL, NYLJ, Oct 7, 2020 at 4, col 4). A view opposing Whelan’s was published on October 19, 2020 (see Souren A. Israelyan, The Governor Had Authority to Toll the Statute of Limitations, NYLJ, Oct 19, 2020 at 4, col 3), and the question was again raised in another article, published on October 22, 2020 (see Chaya Weinberg-Brodt, “Tolling of New York State Statute of Limitations,” NYLJ, October 22, 2020 at 4, col 4). The current author of the treatise New York Practice, Patrick M. Connors, included a discussion of the issue in his January 2021 Supplement, opining that “the COVID-19 Executive Orders do not simply extend statutes of limitations that expire during the disaster emergency, but rather toll all statutes of limitations on claims that accrued on or before March 20, 2020, and were not time-barred on that date” (id. David D. Siegel & Patrick M. Connors, New York Practice §33 [6th ed 2018] [January 2021 Supplement, at 14]; see also Connors, The COVID-19 Toll Has Ended, Long Live the COVID-19 Toll!, NYLJ, November 23, 2020 at 3, col 1). The two reported trial court cases that have considered the issue, both published after all of the foregoing articles, have also, like the majority of the commentators, concluded that Executive Order 202.8 tolled the statute of limitations (see Foy v. State of New York, 2021 NY Slip Op 21047, 2021 WL 866035, 2021 NY Misc. LEXIS 852 [Ct of Claims, Feb 16, 2021]; Matter of 701 River St. Assoc. LLC [Kennedy Prop. Maint. LLC], 2021 NY Slip Op 21116, 2021 WL 1621630, 2021 NY Misc LEXIS 1969 [Sup Ct Rensselaer County April 27, 2021] [agreeing with analysis in Foy]). After giving consideration to all of the foregoing authorities, this Court rejects Whelan’s argument that (1) the Governor’s authority was limited to a suspension of statutes of limitations, and that (2) only a suspension, rather than a tolling, was intended, and concludes that a tolling was intended in this instance, and that it was permissible. Although Executive Law §29-a as originally enacted authorizes the Governor to temporarily “suspend” specific provisions of statutes, laws, ordinances and rules, the Legislature’s temporary amendment to the statute, enacted on March 3, 2020 (see L.2020 c.23), used language broader than “suspension” by authorizing the Governor to issue necessary “directives.” Even the recent legislative enactment on March 8, 2021 (see L. 2021 ch.71), refers to the March 3, 2020 amendment of Executive Law 29-a as giving the governor “additional powers.” Thus, the reference to time limits being “tolled,” in the initial Executive Order, 202.8, and in the last of the series of Executive Orders addressing statutes of limitations, Order 202.67, was neither accidental nor an abuse of power, but an intentional decision to stop the clock on time limits imposed by the procedural laws of the state. Indeed, the Executive Order 202.72, which was issued on November 3, 2020, at the end of the tolling period, also expressly refers to the time periods that were “tolled” by Executive Orders 202.8 through 202.67. Moreover, despite a superficial similarity of the need for Executive Orders in response to the COVID-19 pandemic with the need for Executive Orders in the wake of the terrorist attacks on September 11, 2001, or following Hurricane Sandy in 2012, court decisions interpreting those other orders are not controlling here. Scheja v. Sosa (4 AD3d 410, 411 [2d Dept 2004]) interpreted Executive Order No. 113.28, by which the Governor had provided a cutoff date of October 12, 2001 for the earlier Executive Orders suspending the statute of limitations, and added an exception for those litigants or their attorneys who had been directly affected by the terrorist attack and temporarily suspended, giving them a grace period until November 8, 2001. The Court’s determination, that only a suspension of the limitations period had been created, rather than a toll, was based on the language and terms of the Executive Order. In contrast, recently, the Second Department, referring to Executive Order 202.8 as having “generally tolled limitations periods” (see Matter of Echevarria v. Board of Elections in the City of NY, 183 AD3d 857, 858 [2d Dept, May 21, 2020]). Unlike the disasters that were addressed by the Executive Orders issued in 2001 and 2012, the COVID-19 pandemic was not a “single event emergency,” but a long-term crisis which has caused “unprecedented shutdown and disruption” (Israelyan, The Governor Had Authority to Toll the Statute of Limitations, NYLJ, Oct 19, 2020 at 4, col 3 supra). A “clock-stopping” mechanism was “a logical and practical remedy for an emergency that…effectively led to a time-out in litigation, in the courts and in society in general” (Moore and Gaier, Toll on Statutes of Limitations During the COVID-19 Emergency, NYLJ, June 2, 2020 at 3, col 1, supra). Interpretation of the Governor’s series of Executive Orders from March 20, 2020 to November 3, 2020 as creating a toll of the statute of limitations will best ensure that we will move forward without placing further undue burdens on litigants in our court system as we emerge from the pandemic. Based on the foregoing, it is hereby ORDERED that defendant’s motion to dismiss the complaint on grounds of untimeliness is denied; and it is further ORDERED that the parties shall appear in the Preliminary Conference Part of the Westchester County Supreme Court, on a date of which they will be notified by that Part. This constitutes the decision and order of the Court. Dated: May 4, 2021
