In the August 2020 edition of the Law Digest, we attempted to deal with the implications of the Governor’s Executive Orders with respect to various deadlines. We characterized Executive Order 202.8 as a toll, and described the impact and effect of the toll. It is important to note that an argument has been raised as to whether a pure toll exceeds the Governor’s powers under the Executive Law, and that the Executive Orders “suspended,” rather than tolled, the applicable procedural deadlines. See, e.g., Judge Thomas E. Whelan, Executive Orders: A Suspension, Not a Toll of the Statute of Limitations, New York Law Journal, October 6, 2020.
We believe the language of the Executive Order is clear that a toll was intended. Nevertheless, if it were to be determined that the Executive Law does not permit the Governor to toll the deadlines, a suspension would be similar to those issued in connection with 9-11 and Superstorm Sandy. Most significantly, and of concern, would be any deadlines falling in between March 20, 2020 and November 3, 2020, the last day of any “suspension” (see Executive Order 202.67 dated October 4, 2020). If the Executive Orders resulted in a suspension rather than a toll, anything with a deadline during that period would become due on November 4, 2020.
Thus, in an excess of caution, and in line with our words of caution in the Digest, a practitioner in that predicament should probably file any claims or actions or meet any deadlines on or before November 4, 2020. Moreover, any deadlines after November 3, 2020, should be treated as firm and not subject to a toll. Repeating Professor Siegel’s sage advice: “Let this issue ultimately be decided in someone else’s case.”