DECISION AND ORDER UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, including e-filed documents/exhibits numbered 33 through and including 58, this motion is decided as follows: The Defendants, JAVIER A. BENAVIDES and UNITED PARCEL SERVICES, INC. (“Moving Defendants”) move this Court by Notice of Motion for an Order dismissing the claims against the Moving Defendants pursuant to CPLR §3211(5). This negligence action was commenced by the Plaintiff with respect to serious personal injury to the Plaintiff allegedly sustained in an automobile accident which occurred on February 12, 2019. The Plaintiff filed its Summons and Complaint against the Defendants J.W. Lichtenberger and SPL Contractors Inc (“Nonmoving Defendants”) with the Court on September 25, 2021, with the Non-Moving Defendants filing their Answer with the Court on October 27, 2021. A Preliminary Conference was held with respect to those parties on January 20, 2022, and the Preliminary Conference Order was entered with the Nassau County Clerk’s Office on March 8, 2022. The Plaintiff and the Non-Moving Defendants entered into a Stipulation which added the Moving Defendants to the caption, and this Stipulation was So Ordered by the Court on February 15, 2022. The Plaintiff filed its Amended Verified Complaint with the Court on February 15, 2022, and the Non-Moving Defendant filed its Answer to the Amended Verified Complaint with Cross-Claims on February 16, 2022. Subsequently, the Plaintiff filed an Amended Summons and Complaint with the Court on March 10, 2022 and the Moving Defendants filed their Answer to the Amended Complaint with the Court on March 23, 2022. The Amended Complaint provides that the Plaintiff allegedly sustained serious physical injuries in a motor vehicle accident which involved three vehicles: (1) a vehicle owned and driven by Plaintiff; (2) a vehicle owned by SPL Contractors Inc. and driven by J.W. Lichtenberger; and (3) a vehicle owned by UPS and driven by Benavides. The Moving Defendants contend that the Supplemental Summons and Amended Complaint had not been served upon them before the expiration of the three year statute of limitations, which the Moving Defendants contend had expired on February 12, 2022. The Defendant UPS and Defendant driver Benavides were served with the Summons and Complaint on March 15, 2022 and March 21, 2022, respectively, dates which are both outside of the Statute of Limitations as interpreted by the Moving Defendants. It is undisputed between the parties that CPLR §214[5] applicable to the accident at bar, which occurred on February 12, 2019. Under ordinary circumstances, the time period under CPLR §214[5] would have expired on February 12, 2022. The Moving Defendants argue for “a minimum deviation” from the relevant three year statute of limitations. The Plaintiff and the Moving Defendants acknowledge that the applicable statute of limitations (CPLR §214[5]) was impacted by the Governor’s Executive Orders related to the COVID-19 pandemic. The Moving Defendants contend that the Executive Orders merely suspended statutes of limitations and was not a complete “toll” of such statutes, and that the statute of limitations in this matter expired long after the suspension period, which occurred from March 20, 2020 to November 3, 2020. In contrast, the Plaintiff argues that the applicable statute of limitations was tolled for 228 days during the pandemic from March 20, 2020, to November 3, 2020, and that 228 days must be added onto the end of the applicable statute of limitations by the Executive Orders, for an effective statute of limitations date of September 28, 2022. The Plaintiff argues that they filed and served the Complaint against the Moving Defendants well within the tolled statute of limitations time period. On March 20, 2020, then Governor Andrew Cuomo issued Executive Order No. 202.8, which limited “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. (emphasis added)” Subsequently, then Governor Cuomo issued a series of nine Executive Orders that extended his intial executive order limiting court operations, eventually through November 3, 2020, and Governor Cuomo’s Executive Order No. 202.72, issued on November 3, 2022, provides that the toll will no longer be in effect as of November 4, 2020. (See Brash v. Richards, 195 A.D.3d 582, 583-584 citing to Executive Order [A. Cuomo] Nos. 202.14, 202.28, 202.38, 202.48, 202.55, 202.55.1, 202.60, 202.67, 202.72 [9 NYCRR 8.202.14, 8.202.28, 8.202.38, 8.202.48, 8.202.55, 8.202.55.1, 8.202.60, 8.202.67, 8.202.72]). Specifically, Executive Order 202.72, the final Executive Order in the series of orders promulgated under the Governor’s emergency powers as related to statutes of limitations, provided that” the suspension for civil cases in Executive Order Number 202.8, as modified and extended in subsequent Executive Orders, that tolled 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 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 statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby no longer in effect as of November 4, 2020.” (9 NYCRR §8.202.72) Pursuant to Executive Law 29-a, the Governor of the State of New York is empowered with the ability to “temporarily suspend specific provisions of any statute, local law, ordinance, or orders, rules or regulations, or parts thereof, of any agency during a state disaster emergency, if compliance with such provisions would prevent, hinder, or delay action necessary to cope with the disaster.” In Brash v. Richards, the Second Department determined that the tolling of a time limitation contained in a statute constitutes a modification of the requirements of such statute within the meaning of Executive Law §29-a(2)(d), and these subsequent executive orders continued the toll that was put in place by Executive Order No. 202.8 ( 195 A.D.3d 582, 585 [2nd Dept 2021] see also Espinal v. Port Authority of New York and New Jersey, 213 AD3d 101 [2nd Dept 2023]) A toll operates by adding the days remaining before the deadline to the date after the toll ceases to be in effect.” (Christian v. Heng Zhang, 75 Misc.3d 1204[A], 166 N.Y.S.3d 513 [Sup.Ct. Bronx County 2022].) The tolling of a statute of limitations halts 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 statute of limitations time period. (See Brash v. Richards, 195 AD3d 582 [2nd Dept 2021] see also Matter of Roach v. Cornell University, 207 AD3d 931 [3rd Dept 2023]) In contrast, a suspension of a statute of limitations does not cause its effective duration from the calculation of the relevant time period, but instead simply delays the expiration of the time period until the end date of the suspension. To wit, if a suspension is effective one day before a statute of limitations expires, then as soon as that suspension is over, only one day would remain for filing. In rejecting the argument that Executive Order 202.8 constitutes a mere suspension of time sensitive filing deadlines – in this example the deadlines set forth in the Court of Claims Act – a trial court held that “[t]he language in subdivision (2), 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, Executive Order 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 tolls were authorized and the claim is not untimely.” (Foy v. State of New York, 71 Misc. 3d 605, 609 [Ct. Claims 2021]). Upon a review of the controlling legal authority, including then Governor Cuomo’s Executive Order, the Statute of Limitations in this matter was tolled from March 20, 2020 to November 3, 2020 (228 days). The 228 period is then added to extend the statute of limitations in matters impacted by the global pandemic. Trial courts have recognized that the Executive Orders “allowed citizens to remain safe with their families during an unprecedented pandemic and helped prevent the spread of the virus. During the duration of the initial phase of the pandemic, many state governmental and private functions were stayed or largely reduced for the safety of the people of New York. These necessary actions meant that many of the functions that are normally offered by the Courts or engaged in by private persons, including attorneys, were either reduced or paused entirely.” (Vasquez v. Tri-State Lbr. Ltd., 78 Misc. 3d 1230[a][Sup Ct. Kings County, 2023]). Under the unique circumstances presented by the global pandemic, New York courts have recognized that “the ability to consult and work with an attorney was impaired for the 228 days of the tolling period. Adding these 228 days to what otherwise would have been the expiration of the statute of limitations is more than appropriate under this unique once-in-a-century situation.” (Id. at 18). The COVID-19 pandemic was not a “single event emergency, but a long-term crisis which has caused unprecedented shutdown and disruption” (Bastell v. Rye Brook, 2021 N.Y. Misc. LEXIS 2198, 6-7 [Sup Ct, Westchester County 2021]). “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.” (Id. [citing to Moore and Gaier, Toll on Statutes of Limitations During the COVID-19 Emergency, NYLJ, June 2, 2020 at 3, col 1]) Based upon the foregoing, including a careful review of the papers and supporting exhibits submitted as well as precedent, the Moving Defendants’ motion to dismiss the claims filed against it herein is DENIED. This constitutes the Decision and Order of the Court. Dated: July 20, 2023
