Opinion
Index No. 807791/2021E Mtn. Seq. No. 1
01-11-2022
ERIC HOWELL, Plaintiff, v. COMREF 380, LLC, CLARION PARTNERS, LLC, CLARION PARTNERS, L.P., CLARION ONE, L.P., L&L HOLDING COMPANY, LLC, L&L 380 MADISON DEVELOPER LLC, L&L 380 MADISON LEASING AGENT, LLC, L&L HOLDING CO., LLC and TISHMAN INTERIORS CORPORATION, Defendants,
Unpublished Opinion
DECISION AND ORDER
Hon. Lucindo Suarez Judge
The issue raised in Defendants' motion to dismiss is whether former Governor Andrew Cuomo's Executive Order 202.8 and subsequent Executive Orders tolled or suspended Plaintiffs time to commence the instant legal action seeking to recover monetary damages for personal injuries he sustained on November 7, 2017. This court holds that Governor Cuomo's Executive Order 202.8 and subsequent Executive Orders effectively tolled the applicable statute of limitations, thereby, rendering Plaintiffs commencement of this action timely.
I. Standard to Dismiss
To dismiss a cause of action pursuant to CPLR §3211(a)(5) on the ground that it is barred by the applicable statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired. See Kennedy v. H. Bruce Fischer, Esq., P.C., 78 A.D.3d 1016, 912 N.Y.S.2d 590 (2d Dep't 2010). If defendant establishes that the time to sue has expired then the burden shifts to plaintiff to aver evidentiary facts establishing that the cause of action falls within an exception to the statute of limitations, or to raise an issue of fact as to whether such an exception applies. Id.
II. Executive Order 202,8 and Subsequent Executive Orders
In response to the early onset of the COVID-19 pandemic, Governor Cuomo issued Executive Order 202.8, which in pertinent part provides: "I [Governor Cuomo] hereby temporarily suspend or modify, for the period from the date of this [Executive Order] through April 19, 2020 the following:... 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 ... is hereby tolled from the date of this executive order until April 19, 2020." (emphasis supplied).
Subsequently, thereafter Governor Cuomo issued a number of executive orders culminating in Executive Order 202.67 dated October 4, 2020, which in relevant part provides: u[t]he suspension in [Executive Order] 202.8, as modified and extended in subsequent [Executive Orders], that tolled 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 ... is hereby continued, as modified by prior executive order, provided however, for any civil cases, such suspension is only effective until November 3, 2020, and after such date any time limit will no longer be tolled.'" (emphasis supplied).
While both parties do not provide this court with any binding appellate authority they did supply sufficient persuasive authority to guide this court appropriately. After a review of the cited case law, this court finds that the matter of Foy v. State of NY, 71 Misc.3d 605, 144 N.Y.S.3d 285 (Ct. CI. 2021) provides the most cogent legal analysis to address the pertinent legal issue at bar namely whether Governor Cuomo's Executive Orders tolled or suspended the time limits for the commencement of a legal action.
Notably, it appears that the Appellate Division, Second Department, in the matter of Brash v. Richards, 195 A.D.3d'582, 149N.Y.S.3d 560 (2d Dep't 2021) adopted Foy's holding regarding its interpretation of Governor's Cuomo's Executive Orders as a toll not a suspension of time to commence a legal action.
The legal issue in Foy revolved around the claimant's request that he be reinstated to his position as a New York State Court Officer. Id. at 286. The specific legal issue adjudicated was whether claimant's claim for reinstatement to employment was timely filed and served in accordance with the statutorily prescribed 90-day time period. Id. at 286. The court in Foy found that Governor Cuomo's Executive Orders were clear in providing a toll, and not a suspension, thus, finding that the claimant's claim for reinstatement was not untimely, /rfat 286. Therefore, this court is inclined to adopt the legal analysis articulated in Foy in finding that Governor Cuomo's Executive Orders are correctly interpreted as a toll not a suspension.
III. Background
This action stems from a construction related accident that occurred on November 8, 2017. As a result, Plaintiff commenced this action by filing his summons and verified complaint with the Bronx County Clerk's Office on June 7, 2021, asserting causes of action under Labor Law §§200, 240, 241 and for common law negligence. Defendants now move to dismiss this action pursuant to CPLR §3211(a)(5) based on the three-year statute of limitations period for personal injuries articulated under CPLR §214(5).
IV. Legal Analysis and Conclusion
Defendants contend that this court lacks personal jurisdiction over them as Plaintiff failed to timely commence this action. Defendants rely upon CPLR §214(5), which in relevant part provides that an action to recover damages for a personal injury must be commenced in three years. As such, Defendants argue that based on the time periods provided under CPLR §214(5) the statute of limitations expired on November 8, 2020. Thus, Defendants posit that a dismissal is warranted under CPLR §3211(a)(5) as Plaintiff did not commence this action until June 7, 2021, approximately seven months beyond the expiration of the statute limitations time period prescribed by CPLR §214(5).
In oppostion, Plaintiff claims that this action is not time barred. He relies upon Governor Cuomo's Executive Order 202.8 and subsequent Executive Orders, which he alleges tolled the statute of limitations period in light of the COVID-19 pandemic. He argues that since Governor Cuomo's Executive Orders tolled the time to commence legal actions, therefore, the time period between March 20, 2020, and November 3, 2020, would be excluded here from the calculation of the relevant statute of limitations time period, thus, making the instant action timely.
This court finds that Governor Cuomo's Executive Order 202.8 and subsequent Executive Orders did not suspend but tolled the applicable statute of limitations time period from March 20, 2020, to November 3, 2020, therefore, rendering Plaintiff's commencement of this action on June 7, 2021, timely.
A toll suspends the running of the applicable period of limitation for a finite time period, and "[t]he period of the toll is excluded from the calculation of the [relevant time period]." "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." See Brash, 195 A.D. 583, 149 N.Y.S. at 561.
Accordingly, it is
ORDERED, that Defendants' motion to dismiss is denied.