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New York Judge Resolves “Toll” vs. “Suspension” Debate Over EO 202.8

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As we previously discussed, Governor Cuomo put in place a grace period for the time limit on civil claims in light of the COVID-19 coronavirus pandemic and all attendant complications and delays. The order instituted a pause on the statutes of limitations for claimants to pursue civil claims, such as toxic tort lawsuits. In our earlier post, we addressed some confusion around whether the grace period amounted to a “toll” or a “suspension” of the statute of limitations, and how that might affect the longevity of claims. A New York Court of Claims judge recently made a definitive finding on the matter. Continue reading to learn about the decision, and call a dedicated New York insurance coverage defense attorney for help with insurance coverage litigation.

New York Judge Says Toll

The matter of Foy v. State of New York concerned allegations of wrongful termination brought by a former New York State Court Officer against the State. The defendant moved to dismiss the case, alleging the claims were not timely filed or served.

The plaintiff was terminated on February 18, 2020, which represents the latest possible “date of accrual” for the plaintiff’s claims (meaning the underlying incident triggering the plaintiff’s right to bring a claim). This type of wrongful termination claim must be brought within 90 days of accrual. The plaintiff brought his claim on July 21, 2020, and served the defendant on November 17, 2020, almost nine months after the plaintiff was allegedly wrongfully terminated. Under normal circumstances, the plaintiff’s claim would be time-barred.

The plaintiff argued that Gov. Cuomo’s Executive Order 202.8, issued March 20, 2020, gave him sufficient additional time to file and serve his claim. The Executive Order and subsequent extensions amounted to 228 extra days for bringing claims. As we previously explained, if the EO amounted to a “suspension,” then the plaintiff’s claims would have expired on November 4, when the suspension was lifted. If the EO granted a “toll,” then the plaintiff would have had additional days after November 4 to file his claims.

As explained by the Court:

The number of days between when the claim accrued, February 18, 2020, and when claimant accomplished service on November 17, 2020, is 273 days. Subtracting the period of the toll, 228 days, from the period of time between accrual and service, 273 days, results in a difference of 45 days. Therefore, on November 17, 2020, 45 days remained before the expiration of time to serve and file the claim.

After admonishing the State of New York for “inexplicably fail[ing] to advise the court of Executive Order 202.8 and then, once raised by claimant, neglect[ing] to address it’s [sic] impact here,” the Court found that the Executive Order unequivocally amounts to a toll for commencement and service of civil claims. The Court held that the language in New York’s Executive Law as well as the Governor’s Executive Order “can reasonably be characterized as implementing a temporary alteration of the timely filing and service provisions in Court of Claims Act § 10, a modification.” The plaintiff’s claims were subject to a toll for 228 days and were thus not untimely.

For experienced, excellent legal guidance on a New York insurance defense or toxic tort claim, contact the Islip offices of Richard A. Fogel at 516-721 -7161.

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