Monday, October 26, 2020

Toll or Suspension -- What's Due on November 4th?

I am beginning to question my office's present position on whether New York Executive Order § 202.8 and its subsequent extensions operates as a toll or suspension of prescribed limitations periods. 

Many think, as did I originally, that 202.8 et seq. created a toll. If it’s a toll, I’ve said that 229 days must be added to the expiration date. If it’s a suspension, any procedural limitations period that expired or will expire from March 20th through November 3rd will become November 4th, making a LOT of things due that day. Governor Cuomo started off in EO 202.8 calling it a toll, but EO 202.67, as you will recall, states that “for any civil case, such suspension is only effective until November 3, 2020, and after such date any such time limit will no longer be tolled[.]” Great. That’s clears it up. 

Fellow NY blogger Eric Turkewitz thinks it’s a toll. So do these attorneys

Second Department Appellate Division Justice Thomas F. Whelan, however, thinks it’s a suspension

I’m now leaning towards suspension, in part because the statute that gives the governor emergency powers and the statute Cuomo cited in all orders in the Executive Order 202 series – Executive Law § 29-a – is entitled “Suspension of other laws” and starts: 
1. Subject to the state constitution, the federal constitution and federal statutes and regulations, the governor may by executive order 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. 

2. Suspensions pursuant to subdivision one of this section shall be subject to the following standards and limits: 
a. no suspension shall be made for a period in excess of thirty days, provided, however, that upon reconsideration of all of the relevant facts and circumstances, the governor may extend the suspension for additional periods not to exceed thirty days each[.] 
Whatever it is, it’s ending on November 3, 2020.  I'm going to meet with the attorneys in my office and do some more reading and studying.  Join me afterwards in a Microsoft Teams meeting on Tuesday, November 3rd, at 2:00 PM ET to hear my office's updated opinion on this question and discuss and cast your vote.  Not in that election. This one.

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