Just shy of 9:00 PM tonight (July 6, 2020), someone using a Ricoh IM C6000 (show Document Properties) scanned Governor Andrew Cuomo's Executive Order 202.48, "continuing" for another 30 days through August 5, 2020, the tolling of "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 civil practice law and rules, *** or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof[.]"
Those who have been keeping track will recall that it was Executive Order 202.8, issued on March 20, 2020, when New York was shutting down to prevent the spread of COVID-19, that first
temporarily suspend[ed] or modif[ied], for the period from the date of this Executive Order through April 19, 2020 the following:
• In accordance with the directive of the Chief Judge of the State to limit 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[.]What followed through 9:00 PM tonight has been a series of executive orders "continuing" the tolling provision of Executive Order 202.8:
- on April 7, 2020, Executive Order 202.14 "continue[d] the suspensions and modifications of law, and any directives, not superseded by a subsequent directive, made by Executive Order 202 and each successor Executive Order to 202, for thirty days until May 7, 2020";
- on May 7, 2020, Executive Order 202.28 "continue[d] the suspensions and modifications of law, and any directives, not superseded by a subsequent directive, made by Executive Order 202 and each successor Executive Order up to and including to Executive Order 202.14, for thirty days until June 6, 2020"; and
- on June 6, 2020, Executive Order 202.38 "continue[d] the suspensions and modifications of law, and any directives, not superseded by a subsequent directive, made by Executive Order 202 and each successor Executive Order up to and including to Executive Order 202.14, as continued as contained in Executive Order 202.27 and 202.28 until July 6, 2020[.]"
What this means, in effect, is that "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 civil practice law and rules, *** or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof" is tolled through at least August 5, 2020.
In essence, any time limitation falling within the scope of EO 202.8, as continued, froze on March 20, 2020. How much additional time the party will have to commence, file or serve will depend on whether the otherwise applicable procedural limitations period expired during or after the tolling period.
Procedural limitation period expiring DURING the tolling period:
>> Count the number of days from and including March 20, 2020 to and including the original limitations period's expiration date and add that number of days to the date on which the tolling expires.
For example, if a plaintiff's applicable statute of limitations period to commence a personal injury action based on negligence was set to expire on March 31, 2020, that plaintiff will have 12 days (include March 20th as one tolled day) after the expiration of the current tolling period to commence that action. If the August 5, 2020 expiration date is not again "continued", that plaintiff will have until August 17, 2020 (12 days after August 5th) to commence her personal injury action.
Procedural limitation period expiring AFTER the tolling period:
>> Count the number of days from and including March 20, 2020 to the end date of the COVID-19 tolling period and add that number of days to the prescribed limitations period after the tolling expires.
For example, if the current August 5, 2020 tolling end date is not again continued, a plaintiff whose limitations period is set to expire after August 5, 2020 will have 139 days after August 5, 2020 or by December 14, 2020 (December 13 is a Sunday) to commence her action.
Question: Does this tolling apply to the two-year contractual suit limitations period of a property insurance policy?
Answer: Unclear, but probably. EO 202.8 refers only to time limits "as prescribed by the procedural laws of the state, including but not limited to *** the civil practice law and rules, *** or by any other statute, local law, ordinance, order, rule, or regulation[.]" Technically speaking, a contractual suit limitations period is not one "prescribed by the procedural laws of the state". New York Insurance Law § 3404(e) does not "prescribe" a two-year suit limitations period, and Insurance Law § 3404(f)(1)(A) mandates that a New York policy that insures against fire contain, "with respect to the peril of fire, terms and provisions no less favorable to the insured than those contained in the standard fire policy [§ 3404(e)].
Before testing this question in litigation, however, consider giving me or your favorite New York first-party property coverage counsel a call to discuss the arguments that can be made for and against tolling of a property insurance policy's suit limitations period. And/or read the Appellate Division, Fourth Department's 2010 decision in Dail v. Merchants Mut. Ins. Co. (74 AD 3d 28 [4th Dept. 2010])("the 'death toll' in CPLR 210(a) is applicable to an action against an insurer where the policy at issue contains the two-year limitations period contained in Insurance Law § 3404 (e)"). If statutory tolls apply to a contractual limitations period, a strong argument can be made that the administrative COVID-19 toll will apply, as well.