Brash v. Richards - 2021 NY Slip Op 03436, 195 A.D.3d 582, 149 N.Y.S.3d 560 (App. Div. 2nd Dept.)

Rule:

Executive Law § 29-a(2)(d) provides that an order issued pursuant thereto 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. This language in Executive Law § 29-a(2)(d) indicates that the Governor is authorized to do more than just suspend statutes during a state disaster emergency; he or she may alter or modify the requirements of a statute, and a tolling of time limitations contained in such statute is within that authority.

Facts:

As a result of the COVID-19 pandemic, Governor Andrew Cuomo executed a series of executive orders which limited court operations and tolled any specific time limit for the 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. Appellant was served an order of the court, with written notice of entry, on October 2, 2020. The appellant served and filed a notice of appeal on November 10, 2020. According to the respondents, the notice of appeal was untimely served and filed, because, in their view, Governor Cuomo suspended filing deadlines in civil litigation in the New York courts until November 3, 2020. In contrast, the appellant argued that Governor Cuomo tolled such filing deadlines, meaning that the appellant had 30 days from November 3, 2020, to serve and file the notice of appeal.

Issue:

Under the circumstances, was the appellant’s notice of appeal timely? 

Answer:

Yes.

Conclusion:

The court held that the movant’s appeal of an order determining his motions in limine was timely because a series of COVID-19 executive orders constituted a toll of filing deadlines in New York courts because Executive Law § 29-a(2)(d) provided that the Governor was authorized to alter or modify statutory requirements, so the executive orders tolled the CPLR 5513(a) time limitation for movant's appeal. Furthermore, the court held that the order appealed from was also appealable as of right under CPLR 5701[a][2][v], as it decided motions made upon notice that affected a substantial right of the parties.