Tuesday, March 2, 2021

Toll or Suspension? New York Court of Claims Judge Says Toll.

Did New York Governor Cuomo's Executive Order 202.8 et seq. create a toll or suspension of prescribed procedural limitations periods? 

On February 21, 2021, this New York Court of Claims judge, after chiding the New York Attorney General's Office for having "inexplicably failed to advise the court of Executive Order 202.8 and then, once raised by [the pro se] claimant, neglected to address it's impact here," said toll

Executive Order 202.8, as noted, provides for a toll, as do Executive Order 202.67 and Executive Order 202.72, the last two executive orders addressed to time limits for the commencement, filing or service of a legal action. Thus, it is clear that a toll, and not a suspension, was intended and the question becomes whether the statute authorizes a toll. The primary consideration in the construction of a statute is to ascertain and give effect to the intention of the legislature (McKinney's Cons Laws of NY, Book 1, Statutes § 92). The legislative intent is to be ascertained from the words and language used and the statutory language is generally construed according to its natural and most obvious sense without resorting to an artificial or forced construction. (McKinney's Cons Laws of NY, Book 1, Statutes § 94). Focusing on the phrase "suspend any statute" in Executive Law § 29-a(1), the statue demonstrates a far reaching application. Considering that the legislature extended the authority for the governor to suspend to "any statute", that power should not be read in the narrow context of statutes involving time limitations where a `suspension' represents a term of art. Moreover, a statute must be construed as a whole reading the various sections together to determine legislative intent (Matter of Plastic Surgery Group, P.C. v Comptroller of the State of NY, 34 NY3d 507, 516 [2019]; Loehr v New York State Unified Court System, 150 AD3d 716 [2d Dept 2017]). In that regard, consideration must be given to the language in Executive Law § 29-a(2) which provides that "[s]uspensions pursuant to subdivision one of this section shall be subject to the following standards and limits" and in paragraph "d" of subdivision two, which provides that the implementing executive order "... may provide for the alteration or modification of the requirements of such statute, local law, ordinance, order, rule or regulation suspended, and may include other terms and conditions". The language in subdivision two, 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 statue. 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, 2021 NY Slip Op 21037 (NY Ct. Clms. 2021)

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