Summary of Executive Order 202.38

By Adriel Colón-Casiano

Executive Orders

On June 6, 2020, Governor Andrew Cuomo issued Executive Order 202.38 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 until July 6, 2020 the suspensions and modifications of laws and any directives from Executive Orders up to and including Executive Order 202.14 provided they are not superseded by a subsequent directive.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.”

The Governor included in this modification continuations and modifications contained in Executive Orders 202.27 and 202.28.

The Governor directed that commercial building owners, retail store owners, and operators of public places have the discretion to condition on admittance on a temperature check. Individuals who refuse or have a temperature above the Department of Health guidelines may be denied admittance. Enforcement of this directive must be in a manner consistent with human and disability rights law. Operators will not be subject to claims for a violation of the covenant of quiet enjoyment or frustration of purpose due to enforcement of this directive.

The Governor modified a directive contained in Executive Order 202.3 to allow restaurant or bars to serve food or beverages on-premises in an outdoor space provided the business is in compliance with Department of Health guidance.

Non-essential gatherings for houses of worship are permitted to occur provided no greater than 25% of the indoor capacity is used, the house of worship is in a Phase 2 reopening region, and Department of Health social distancing and cleaning protocols are adhered to.

Restaurants or bars are permitted to expand service under the premises license to use a contiguous public space such as sidewalks, closed streets, or other unlicensed contiguous private space under the control of the restaurant or bar. The use of the expanded space is subject to reasonable limitations and procedures by the State Liquor Authority and subject to Department of Health guidance. `

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 July 6, 2020.

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