The Adult Survivors Act was signed by Gov. Hochul six months ago, and is modeled on the New York’s Child Victim’s Act. The law’s premise is simple: The statute of limitations on sexual assaults is suspended for a year. Old claims that had been stale are now open. As of Thursday, Thanksgiving Day.
The fundamental logic behind it is straightforward: People (likely to be mostly women) who had been sexually assaulted years ago and afraid to come forward may now do so. The #MeToo movement has given courage to many to do that which they had previously been afraid to do.
It wouldn’t be the first time, nor the last, where people just tried to bury in their minds that bad thing that happened to them. Now they can unbury them.
Perhaps, if enough come forward, a pattern of conduct may be evidence. If, that is, it is admissible.
Such cases may happen with alleged victims of Jeffrey Epstein and Ghislaine Maxwell. Or Donald Trump. Or Andrew Cuomo. Or movie stars. Or corporate titans. Or people you’ve never heard of. Or you.
You. Did I say you? How does one defend against claims that may be decades old? Witnesses, diaries or other documentary evidence may be lost or gone. How does a defendant show that he was in the Bronx at the time the assault was alleged to have happened in Brooklyn? Or that they even knew the person? Where were you on the night of February 28, 1992?
And how does the Estate of John Doe defend against an accusation that John Doe sexually assaulted someone?
Will jurors simply accept the word of one person against the other in a classic “he said / she said” argument?
All of these cases will be traumatic. Few will be easy.
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.
And now the First Department has done likewise, holding last week in Murphy v. Harristhat 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.
When the pandemic struck, people stayed home. And when they stayed home, many couldn’t work. And if they could work, it wasn’t the same.
To say that had an impact on the justice system would be an understatement. Every conceivable time limit set forth in the law was now a problem. Such as many statutes of limitations. Civl law, criminal law, family law, no matter what.
Lawyers couldn’t safely go to their offices where the files were, and even if they were backed up in the cloud and accessible at home, couldn’t meet with clients, couldn’t investigate scenes, couldn’t get process servers to serve process. This was obvious to anyone with functioning neurons.
So on March 20, 2020, Gov. Andrew Cuomo issued Executive Order 202.8 to suspend the many statutes of limitations for 30 days. He has that authority under Executive Law § 29-a. Nine other 30-day orders followed regarding the suspension. Except for those times he referred to this as a toll. This was his wording on the first order:
“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 criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate’s court procedure act, and the uniform court acts, 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.”
Is there a difference between a suspension and a toll? As the late Professor David Siegel used to say, “You never want to be the test case.” Let some other poor slob carry that water to the appellate courts. Be conservative.
But ultimately, you need to know. Why? Because as Suffolk County Justice Thomas Whalen argued in the New York Law Journal two days after Gov. Cuomo called it a toll, the Executive Law grants permission to suspend and not toll, and there is a difference: A suspension prevents the statute of limitations from expiring until the suspension is lifted. Thus, if it would expire during the course of suspension, then it expires on the day the suspension is lifted.
A toll, by contrast, stops the counting of days dead in its tracks. If a toll lasts 42 days, they you add 42 days to the date the statute of limitations would have otherwise expired.
The argument that Justice Whalen made was that Executive Law § 29-a only gave permission to the governor to suspend, not to toll, and that tolling exceeded that authority.
Executive Law § 29-a(2)(d) 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.”
The issue came to a head yesterday in Brash v. Richards, where the time time to file a Notice of Appeal was blown. The statute calls for filing this within 30 days of being served with it. That took place on October 2, 2020. Then the Governor lifted the suspension/toll on November 3rd. The Notice of Appeal was then filed November 10th, beyond the 30 day limit, requiring the lawyer to argue this was a permissible toll and not a suspension.
Again, it sucks to be a test case.
The court held that this was a toll, notwithstanding the lack of clarity in the Governor’s orders by referring to it sometimes as a suspension and other times as a toll. Why? Because he has the power not only to suspend, but also to alter or modify statutes. The 30-day time period to file a Notice of Appeal started to run, therefore, on November 3rd, and filing it on November 10th was well within the 30 days.
So, there you have it. The Executive Orders resulted in a tolling of the statutes of limitations from March 20 until it ended on November 3, 2020. A period of 228 days if my my quick Google calculation is correct.
Unless, of course, a different appellate court in New York rules otherwise or the Court of Appeals reverses.
Back on March 7th, Gov. Cuomo declared an emergency in New York due to then COVID-19 pandemic. And with that, issued a tsunami of Executive Orders.
One of those orders tolled the statute of limitations (Executive Order 202.8) effective to March 20th. That tolling was widespread for a number of different areas, inclusive of all civil cases, and included:
any specific time limit for the commencement, filing, or service o f any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws ofthe state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate’s court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date ofthis executive order until April 19, 2020
Thereafter, every 30 days Cuomo extended the toll (or is it merely a suspension? See update) another 30 days.
The courts were closed. Lawyers and clients alike were sheltering in place, and to this day some lawyers still have not gone into their offices, which are now just very high-priced storage facilities.
For the non-lawyers that may be reading, a toll means an effective freeze. If there was 60 days left on the statute of limitations to sue on a car collision, you would still get that 60 days when the toll was lifted. If you slipped and fell on ice in a ;parking lot in the middle of July while the tolling was in place, the statute of limitations would not start to run until the toll was lifted.
But now the toll (if it is a toll, see the update) is being lifted for civil cases, as noted in the subject heading. It ends on November 3rd (Election Day) as per Executive Order 202.67, 228 days after it started.
So, a practitioners note, if a client has a matter that needed to be put into suit, and you were dilly-dallying because of the tolling, dilly-dally no longer.
And if you continue to dilly-dally, make sure your professional liability premiums are paid up, if you get my drift.
Update: In the New York Law Journal, Justice Thomas Whelan (Supreme Court, Suffolk County) argues that the courts may not view this as a tolling of the statute of limitations, but as a suspension, thereby creating a trap for the unwary. There are, obviously, no cases on this yet as the Executive Orders won’t expire until November 3rd:
While a toll stops the running of the limitation period, with a tacked-on time period, a suspension of the statute of limitations would provide for a grace period until the conclusion of the last suspension directive in the latest executive order, a significantly shorter time period.
The basis of the argument is that, while the original EO specifically said the statutes of limitations were “tolled,” the seven subsequent orders that extended it state that they “temporarily suspend or modify any statute, local law, ordinance, order, rule, or regulation, or part thereof, …”
Thus, “tolling” in the original and “suspension” in the follow-ups.
Each of the orders cites as its authority Executive Law §29-a, which permits the governor to “temporarily suspend any statute, local law, ordinance, or orders, rules or regulations, or parts thereof, of any agency during a state disaster emergency…” It does not use the word toll.
If it is a suspension, as Justice Whelan argues, then you don’t tack on to the end of the statutory period the number of days in the toll. You simply get a grace period until the end of the suspension if your time would otherwise expire, and that means a flood of filings between now and when it ends.
The essence of the issue is this: Did Gov. Cuomo exceed his authority under Exec Law 29-a by creating a toll, when only a suspension was authorized by the Legislature? And what of the litigants that relied on the Governor’s use of the word “tolling?”
The bottom line, in the words of the late Prof David Siegel, Grand Guru of all that is New York’s civil practice law and rules: You don’t want to be the test case. File your damn papers now.
Today New York joined the growing list of states that allows victims of child sexual assault to come forward and bring suit for that assault, even if the attack is decades old. The law will also extend the statute of limitations on criminal actions.
On the civil side, the Child Victims Act will allow people to proceed up to the age of 55, where they claim that they were sexually assaulted as kids.
On the criminal side, the statute of limitations won’t start to run until the child has turned 23.
But the time to bring civil suits comes with a narrow window of 12 months.
The twin problems, as widely discussed in the press, is on the one hand the human desire to suppress traumatic memories because they are so painful. Such suppression may occur when the alleged assailant is an otherwise trusted individual such as clergy, family, friends or educators. This allows the statute of limitations to slip by.
The other problem, of course, is trying to prove that the assault actually happened long after witnesses and physical evidence may have vanished, and memories may have dimmed. Or that if it happened, it happened as described by the complainant.
Anybody who watched the Senate hearings to confirm Justice Kavanaugh (or Justice Thomas before that) knows how tough it is to sort through old evidence.
The law had long been sought by Assembly Democrats in Albany, but was blocked by Republicans that controlled the Senate. With the blue wave that swept the nation this past election, the Democrats took possession of the Senate and the bill has sailed through.
The law will become effective six months from signing (today, February 14) and then run for one year. This time lag will give the judiciary time to examine the law and prepare for new cases and, one might expect, for a variety of continuing legal education classes to pop up for lawyers about how to handle them.
One should expect that, in mid-August, a flurry of new lawsuits will be brought under the new legislation.