Opinion
Index No. EF2021-68701
10-07-2021
Bradley F. PAYNE, Plaintiff, v. KING NEPTUNES NY, LLC, King Neptunes NY, LLC d/b/a King Neptune's and "John Doe No. 1" and "John Doe No. 2" the names of the last two defendants being fictitious and unknown to Plaintiff, it being intended to designate employees, agents and/or servants of King Neptunes NY, LLC and/or King Neptunes NY, LLC d/b/a King Neptune's, Defendants.
O'Connell and Aronowitz, Albany (Pamela A. Nichols, of counsel), for plaintiff. Smith Mazure, P.C., New York (Stacia J. Ury, of counsel), for defendants.
O'Connell and Aronowitz, Albany (Pamela A. Nichols, of counsel), for plaintiff.
Smith Mazure, P.C., New York (Stacia J. Ury, of counsel), for defendants.
Robert J. Muller, J.
Defendant King Neptunes NY, LLC (hereinafter defendant) owns and operates a nightclub located at 1 Kurosaka Lane in the Village of Lake George, Warren County. On August 13, 2017, defendant's employee allegedly ejected a patron from the nightclub "in such a manner that he was caused to strike the plaintiff thereby causing the plaintiff to sustain personal injuries." Plaintiff thereafter commenced this action on February 3, 2021 to recover for these injuries. Presently before the Court is defendants’ pre-answer motion to dismiss on the grounds that the action is barred by the statute of limitations (see CPLR 3211 [a] [5] ).
Defendants contend that the statute of limitations in this action — which would have expired on August 13, 2020 — was suspended until November 3, 2020 under a series of executive orders issued by former Governor Andrew Cuomo as a result of the COVID-19 pandemic, and that the action must be dismissed because it was not commenced until February 3, 2021. In this regard, defendants further contend that Executive Law § 29-a (1) — which provides that 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" — authorizes only the suspension of statutes of limitations.
Specifically, defendants reference Executive Order No. 202.8 (see 9 NYCRR 8.202.8 ), as extended by Executive Orders Nos. 202.14, 202.28, 202.38, 202.48, 202.55, 202.55.1, 202.60, 202.67, 202.72 (see 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).
Plaintiff, on the other hand, contends that the series of executive orders tolled the statute of limitations and, as such, the statute of limitations in this case did not expire until March 29, 2021 — after the action was commenced. Plaintiff further contends that the Governor was authorized to toll the statute of limitations under Executive Law § 29-a (2) (d), which provides that an 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."
A toll suspends the running of the applicable statute of limitations for a finite time period, and "the period of the toll is excluded from the calculation of the time in which the plaintiff can commence an action" (Chavez v Occidental Chem. Corp. , 35 NY3d 492, 505 n 8 [2020] ; see Foy v State of New York , 71 Misc 3d 605, 608 [Ct Cl 2021] ). "Unlike a toll, a suspension does not exclude its effective duration from the calculation of the relevant time period. Rather, it simply delays expiration of the time period until the end date of the suspension" (Foy v State of New York , 71 Misc 3d at 608 ).
Following the return date of the motion, the Appellate Division, Second Department issued its decision in Brash v Richards (195 AD3d 582 [2021] ) (hereinafter Brash ) finding that "the subject executive orders tolled the time limitation[s]" contained in the CPLR ( id. at 585 ), and that the Governor was authorized under Executive Law § 29-a (2) (d) to toll these time limitations (see id. at 584-585 ). To the extent that no other Appellate Division has issued a decision on the issue, the Court is bound by the findings in Brash (see Mountain View Coach Lines v. Storms , 102 AD2d 663, 664 [1984] ). With the statute of limitations tolled for 228 days from March 20, 2020 — when the first executive order was issued — to November 3, 2020, this action had to be commenced on or before March 29, 2021. Commencement of the action on February 3, 2021 is therefore timely.
Based upon the foregoing, defendants’ motion to dismiss is denied in its entirety.
Defendants are hereby directed to serve an answer on plaintiff within thirty (30) days of service of a copy of this Decision and Order with notice of entry thereon.
Therefore, having considered NYSCEF documents 1 through 9, 11, 13 and 14, it is hereby
ORDERED that defendants’ pre-answer motion to dismiss is denied in its entirety; and it is further
ORDERED that defendants shall serve an answer on plaintiff within thirty (30) days of service of a copy of this Decision and Order with notice of entry thereon; and it is further
ORDERED that any relief not specifically addressed herein has nonetheless been considered and is expressly denied.
The original of this Decision and Order has been e-filed by the Court. Counsel for plaintiff is hereby directed to promptly obtain a copy of the e-filed Decision and Order for service with notice of entry upon defendant in accordance with CPLR 5513.