Opinion
500999/2021
05-20-2021
Christopher MCLAUGHLIN, Plaintiff, v. SNOWLIFT INC. and John Doe Name Being Fictitious and Intended for the Operator, Defendants.
As required by CPLR 2219(a), the following papers were considered in the review of this motion:
PAPERS NUMBERED
Notice of Motion, Affidavits, Affirmation and Exhibits 1
Memorandum of Law in Support if Motion 2
Affirmation in Opposition to Motion 3
Memorandum of Law in Reply 4
Upon the foregoing papers Defendant Snowlift LLC (incorrectly sued as Snowlift Inc., "Snowlift") moves this Court for an Order pursuant to CPLR § 3211(a)(5) dismissing the Complaint because of the expiration of the statute of limitations; and or such other and further relief as this Court may deem just and proper.
Background
This is a personal injury case. Christopher McLaughlin ("Plaintiff") alleges that a vehicle he was driving collided with another vehicle on January 4, 2018, in the service road of Terminal 2 at John F. Kennedy International Airport. Plaintiff alleges that Snowlift had a duty to maintain the road in question and failed to do so, causing the accident.
Discussion
"On a motion pursuant CPLR 3211(a)(5) to dismiss a complaint as time-barred, the moving defendant must establish, prima facie, that the time in which to commence the action has expired." Aurilia v. Carbonara, 185 AD3d 767 (2d Dep't 2020). An action to recover for personal injury has a three-year statute of limitations. CPLR § 214. In the instant case, the Summons and Complaint was filed on January 13, 2021, more than three years after the date of the accident. The delayed filing of the Summons and Complaint would usually be a fatal defect to this case; however, Plaintiff argues that Governor Andrew Cuomo's COVID-related Executive Orders tolled the statute of limitation, and the action is therefore not time-barred.
Executive Law § 29-a(1) states:
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 (emphasis added).
Executive Law § 29-a(2)(b) states "no suspension shall be made which does not safeguard the health and welfare of the public and which is not reasonably necessary to the disaster effort." Furthermore, Executive Law § 29-a(2)(e) maintains "any such suspension order shall provide for the minimum deviation from the requirements of the statute, local law, ordinance, order, rule or regulation suspended consistent with the disaster action deemed necessary."
On March 20, 2020, Governor Cuomo issued Executive Order 202.8 which states in relevant part:
[B]y virtue of the authority vested in me by Section 29-a of Article 2-B of the Executive Law to temporarily suspend or modify any statute, local law, ordinance, order, rule, or regulation, or parts thereof, of any agency during a State disaster emergency In accordance with the directive of the Chief Judge of the State 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, as prescribed by the procedural laws of the state, including but not limited to the the civil practice law and rules or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020 (emphasis added).
Subject to the provision of Executive Law § 29-a(2)(a), Governor Cuomo issued a series of subsequent Executive Orders which further extended statutes of limitation. On October 4, 2020, Governor Cuomo Executive Order 202.67, his final extension of statutes of limitation. Executive Order 202.67 states in relevant part:
[B]y virtue of the authority vested in me by Section 29-a of Article 2-B of the Executive Law to temporarily suspend or modify any statute, local law, ordinance, order, rule, or regulation, or parts thereof, of any agency during a State disaster emergency, if compliance with such statute, local law, ordinance, order, rule, or regulation would prevent, hinder, or delay action necessary to cope with the disaster emergency or if necessary to assist or aid in coping with such disaster, or to provide any directive necessary to respond to the disaster, do hereby continue the suspensions and modifications of law, and any directives not superseded by a subsequent directive contained in Executive Orders 202 up to and including 202.21, and 202.27, 202.28, 202.29, 202.30, 202.38, 202.39, 202.40, 202.48, 202.49, 202.50, 202.55 and 202.55.1, as extended, and Executive Order 202.60 for another thirty days through November 3, 2020. The 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, including but not limited to the civil practice law and rules or by any statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby continued, as modified by prior executive orders, provided however, 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 (emphasis added).
Plaintiff contends that the Governor's Executive Orders act as a true toll. A true toll would halt the running of the statute of limitations for a specific period and exclude that period 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). During the COVID-19 pandemic, the Governor's Executive Orders took effect on March 20, 2020 and lasted until November 3, 2020; a period of 228 days. If the Executive Orders created a true toll of the statute of limitations, Plaintiff would have up to 228 days added to the statute of limitations, after the November 3, 2020 cutoff date, to commence his action. Under a true toll, this action was timely commenced. Snowlift maintains that the Executive Orders act as a suspension of the statute of limitations. A suspension of the statute of limitations does not exclude a time period from the calculation of the statute of limitations. A suspension merely delays expiration of the time period until the end date of the suspension, in this case, November 3, 2020. Under a suspension, any effect the Executive Orders had expired on November 3, 2020, and this case was untimely commenced.
The Court finds that the effect of the Executive Orders was to suspend the statute of limitations until November 3, 2020, and the Complaint in this action is, therefore, untimely. The statute Governor Cuomo invoked to issue the Executive Orders in question, Executive Law § 29-a, empowers a governor to suspend the statute of limitation, not toll it. Additionally, Executive Law § 29-a(2)(e) compels the Court to interpret the Executive Orders in question with the minimum deviation from the statute of limitation, in the present case as a suspension. Moreover, the language of Executive Order 202.67 makes clear that the Executive Orders have no effect after the November 3, 2020 cutoff date.
In Scheja v. Socsa, the Appellate Division, Second Department held that Executive Orders issued by Governor Pataki, in the wake of the September 11, 2001 terror attacks, effectively suspended the statute of limitation and did not toll it. 4 AD3d 410, 411 (2d Dep't 2004). The Second Department further held that the suspension of the statute of limitations ended on the cutoff date of Governor Pataki's Executive Order. The Court finds the case at bar indistinguishable. Accordingly, it is hereby
ORDERED that the motion to dismiss the Complaint as time-barred is GRANTED.
This is the Decision and Order of the Court.