Summary of Executive Order 202.28

By Adriel Colón-Casiano

May 8, 2020

Summary of Executive Order 202.28


By Adriel Colón-Casiano

On May 7, 2020, Governor Andrew Cuomo issued Executive Order 202.28 invoking new powers from a law passed to combat the COVID-19 pandemic to temporarily suspend or modify laws necessary to assist or aid in coping with a declared State disaster emergency. On March 3, 2020, the Governor signed into law legislation that expanded his authority to temporarily suspend, modify, or issue directives in response to a declared State disaster emergency. That legislation also accompanied a $40 million appropriation to the Governor to respond to the COVID-19 pandemic.

The Governor continued the suspensions and modifications of laws and any directives from Executive Orders up to and including Executive Order 202.14, for thirty days, provided they are not superseded by a subsequent directive. Notably, under Executive Order 202.08 the Governor 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 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.” This tolling of any specific time limit was later modified to expire May 7, 2020 but has now been continued under Executive Order 202.28 to expire in thirty days on June 6, 2020.

The Governor further extended the applicability of a directive under Executive Order 202.14 to allow for the remote witnessing of documents under the Estate Powers and Trusts Law, Public Health Law, Real Property Law, and the General Obligations Law.

The Governor did not continue the suspension or modification of the following statutes and regulations which are in full force and effect as of May 8, 2020:

10 NYCRR 58-1.11; 10 NYCRR 405.10; 10 NYCRR 415.22; 10 NYCRR 400.9; 10 NYCRR 400.11; 10 NYCRR 405; 10 NYCRR 403.3; 10 NYCRR 403.5; 10 NYCRR 400.12; 10 NYCRR 415.11; 10 NYCRR 415.15; 10 NYCRR 415.26; 14 NYCRR 620; 14 NYCRR 633.12; 14 NYCRR 636-1; 14 NYCRR 686.3; 14 NYCRR 517;

10 NYCRR 405.9 except to allow a practitioner to practice in a facility where they are not credentialed or have privileges;

10 NYCRR 800.3 except that subparagraphs (d) and (u) could otherwise limit the scope of care by paramedics to prohibit the provision of medical service or extended service to COVID-19 patients;

Mental Hygiene Law Sections 41.34; 29.11; 29.15;

Public Health Law Sections 3002, 3002-a, 3003, and 3004-a to the extent they allow the Commissioner of Health to make determinations without regional or state EMS board approval;

Subdivision (2) of section 6527, Section 6545, and Subdivision (1) of Section 6909 of the Education Law as well as subdivision 32 of Section 6530 of the Education Law;

Paragraph (3) of Subdivision (a) of Section 29.2 of Title 8 of the NYCRR; and

All codes related to construction, energy conservation, or other building code, and all state and local laws, ordinances, and regulations which would have otherwise been superseded, as applicable for temporary changes to physical plant, bed capacities, and services provided.

Sections 7-103, 7-107, and 7-108 of the General Obligations Law  were suspended and modified to provide that landlords and tenants or licensees of residential properties may enter into a written agreement where the security deposit and accrued interest may be used to pay rent that is in arrears or will become due. Payment in this manner does not constitute a waiver of any remaining rent due. This agreement can be execute in counterpart by email. This relief is available to tenants or licensees who request it and are facing financial hardship due to COVID-19 or are eligible for unemployment insurance or benefits. Landlords cannot harass, threaten or engage in any harmful act to compel such an agreement.

Tenants or licensees must replenish any security deposit used as payment of rent at the rate of 1/12 the amount used as rent per month within 90 days from its usage.

Section 238-a(2) of the Real Property Law was suspended and modified to provide that no landlord, lessor, sub-lessor or grantor shall demand or be entitled to any fee or charge for late payment of rent occurring between March 20, 2020 and August 20, 2020.

Section 8-400 of the Election Law is modified to require absentee applications mailed by the board of elections due to COVID-19 to be drafted and printed in such a way to limit the selection of elections to which the absentee ballot application is only applicable to any primary or special election occurring on June 23, 2020. Absentee ballots already having been mailed that purport to select an option for a general election are only valid as toward any primary or special election occurring on June 23, 2020. All Boards of Elections must provide instructions to voters and post prominently on the website, instructions for completing the application in conformity with this directive.

Suspension of the provisions of any time limitations contained in the Criminal Procedure Law from Executive Order 202.8 were modified to provide that:

Section 182.30 would not prohibit the use of  electronic appearances for certain pleas;

Section 180.60 would allow that all parties’s appearances at the hearing, including the defendant, may be by means of an electronic appearance, and the Court may for good cause shown withhold the identity or withhold the image of and/or disguise the voice of any witness testifying at the hearing pursuant to a motion under 245.70 of the Criminal Procedure law;

Section 180.80 would require that a court must satisfy itself that good cause has been shown within 140 hours from May 8, 2020 that a defendant should continue to be held on a felony complaint due to the inability to empanel a grand jury due to COVID-19;

Section 190.80 to require that a court must satisfy itself that good cause has been shown that a defendant should continue to be held on a felony complaint beyond 45 days due to the inability to empanel a grand jury due to COVID-19 provided the defendant has been provided a preliminary hearing under Section 180.80;

The Governor directed that no initiation of a proceeding or enforcement of either an eviction of any residential or commercial tenant, for nonpayment of rent or a foreclosure of any residential or commercial mortgage for nonpayment, that is owned or rented by someone that is eligible for unemployment insurance or benefits or otherwise facing financial hardship due to COVID-19 for a period of 60 days beginning June 20, 2020.

The Governor directed the continued closure of schools through the remainder of the school year under Executive Order 202.18. School districts must continue plans for alternative instructional options, distribution and availability of meals, and child care to emphasize service for children of essential workers.

Under the newly enacted law, the Governor has the power to suspend, modify, or issue directives during a declared emergency for 30 days which may be extended for an unlimited number of 30 day periods with consent of the legislature after each subsequent period. Unless the Governor elects to extend the suspension or directives, they will expire on June 6, 2020.

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