When the pandemic hit, everything ground to a halt. And this affected not only lawsuits that stalled due to no juries being picked, but far more importantly, it affected cases that had yet to be brought that had the statute of limitations running. It was hard, for example to acquire records, documents and other evidence when the recipients of the requests weren’t in the office. And it was hard for sure to serve a defendant personally with lawsuit filings to start suit.
So Gov. Andrew Cuomo used his emergency powers to issue a series of executive orders that tolled the statute of limitations for 30 days at a time. Except that every so often they were referred to as a suspension.
And there was a big difference between the words “toll” and “suspension.” For a toll stopped the clock — if you had 150 days left on your statute of limitations for example, it would start to run again when the toll expired. You would still have 150 days, as the the period of the toll is excluded from the calculation of time.
But If it was a suspension, then it merely stopped the statute of limitations from expiring during the course of the suspension. So if the suspension lasted 155 days, you would find that the statute of limitations expired as soon as the suspension ended.
This issue came to a head last year in the Appellate Division, Second Department in Brash v. Richards, which I discussed that the Court found it to be a toll, not a suspension.
Then the Third Department held in Matter of Roach v. Cornell that it was also a toll.
And now the First Department has done likewise, holding last week in Murphy v. Harris that it was also a toll. So, the Appellate Divisions are now 3 for 3 in holding the same way, that this is a toll, and without any dissenting opinions. This makes any potential reversal in the Court of Appeals unlikely.