The statute of limitations period for a claim resumes running once the period of tolling ends (explaining that time remaining on claim continued to run again on November 20, 2020).
Plaintiffs filed a wrongful death and personal injury action after the expiration of the standard limitations period, relying on executive orders issued during the pandemic. The defendants argued these orders merely suspended the statute of limitations rather than tolling it, rendering the claims time-barred. The court applies the rule that executive orders expressly using the term toll and continuing prior directives constitute a toll of the statute of limitations, which pauses the running of the time limit for a finite period. Because the tolling extended the deadline past the filing date, the court holds the claims were timely and affirms the denial of the motion to dismiss.
At page 411 Tolling of statute of limitations due to executive orders7 citing cases
- Qi v. Famous Sichuan N.Y. Inc., 250 A.D.3d 548 (N.Y. App. Div. 1st Dep't 2026).published This Court found in Murphy v Harris (210 AD3d 410, 411 [1st Dept 2022]) that the plain language of the initial Executive Order explicitly referenced the term "toll" ( see 9 NYCRR 8.202.8; Murphy , 210 AD3d at 411).
- Katz v. New York City Hous. Preserv. & Dev., 2025 NY Slip Op 51290(U) (N.Y. Sup. Ct., New York Cty. 2025).unpublished However, her claims were tolled by the COVID-19 related toll initiated by Governor Cuomo's Executive Order No. 202.8 ( see Murphy v Harris , 210 AD3d 410, 411 [1st Dept 2022]).
- 4CS Ltd v. Kahiri Diamonds Ltd, 217 N.Y.S.3d 57 (N.Y. App. Div. 1st Dep't 2024).publishedContrary to defendants' contention that the action should be dismissed under CPLR 306-b, we find that the summons and complaint were timely served considering the executive orders tolling the time limit for service of process during the CO…
- State of New York v. Williams, 224 A.D.3d 1356 (N.Y. App. Div. 4th Dep't 2024).publishedThe action was therefore timely commenced on August 17, 2021 ( see Murphy , 210 AD3d at 411; [*2]Brash v Richards , 195 AD3d 582, 585 [2d Dept 2021]; cf. Matter of Roach v Cornell Univ. , 207 AD3d 931, 933 [3d Dept 2022]).
- Ruiz v. Sanchez, 219 A.D.3d 1363 (N.Y. App. Div. 2d Dep't 2023).published Here, due to the tolling provision of the executive orders, the statute of limitations within which the plaintiff was required to file the instant action was tolled between March 20, 2020, and November 3, 2020, a period of 228 days ( see M…
- Williams v. Ideal Food Basket, LLC, 219 A.D.3d 917 (N.Y. App. Div. 2d Dep't 2023).publishedAccordingly, in this case, due to the tolling provision of the executive orders, the statute of limitations within which the plaintiff was required to commence this action was tolled between March 20, 2020, and November 3, 2020 ( see id .;…
- Toth v. New York City Dep't of Educ., No. 1:21-cv-04245 (E.D.N.Y. Aug. 20, 2024). See Murphy v. Harris, 210 A.D.3d 410 , 411 (1st Dep’t 2022) (applying the tolling executive orders to a statute of limitations on a wrongful death claim).
q1 “the executive order 'tolled' any 'specific time limit for the commencement, filing, or service of any legal action until april 19, 2020.' that toll was extended through several subsequent executive orders, the last of which remained in effect until november 3, 2020”4 citing cases
- Elio v. Putnam Cnty. N.Y., 2024 NY Slip Op 50983(U) (N.Y. Sup. Ct., Putnam Cty. 2024).unpublished
- Matter of Catapano, 2025 NY Slip Op 50401(U) (N.Y. Surr. Ct., Putnam Cty. 2025).unpublished
Other citing cases
- Aparicio v. Uber Tech. Inc., No. 1:22-cv-04244 (E.D.N.Y. Aug. 16, 2023).
- Campbell v. De La Torre, No. 1:25-cv-01468 (S.D.N.Y. Aug. 8, 2025).
- Zak v. Bronx Park Phase I Preserv., LLC, 237 A.D.3d 654 (N.Y. App. Div. 1st Dep't 2025).published
- Gao v. Mortg. Elec. Reg. Sys., Inc., 2025 NY Slip Op 30012(U) (N.Y. Sup. Ct., New York Cty. 2025).unpublished
- Country-Wide Ins. Co. v. Kolb Radiology, P.C., 2024 NY Slip Op 32587(U) (N.Y. Sup. Ct., New York Cty. 2024).unpublished
- Toth v. New York City Dep't of Educ., No. 1:21-cv-04245 (E.D.N.Y. Feb. 21, 2024).
- McLaughlin v. Snowlift, Inc., 214 A.D.3d 720 (N.Y. App. Div. 2d Dep't 2023).published
- Jackson v. Goodfellas Pizzeria, Inc., 233 A.D.3d 1468 (N.Y. App. Div. 4th Dep't 2024).published
- Spates v. City of New York, 2024 NY Slip Op 33667(U) (N.Y. Sup. Ct., New York Cty. 2024).unpublished
v.
Harris
| Murphy v Harris |
| 2022 NY Slip Op 06086 |
| Decided on November 01, 2022 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided and Entered: November 01, 2022
Before: Gische, J.P., Gesmer, Oing, Kennedy, Scarpulla, JJ.
Index No. 805347/20 Appeal No. 16564 Case No. 2021-02991
v
Frederick Harris, et al., Defendants, Armando Saltiel, et al., Defendants-Appellants.
Lewis Brisbois Bisgaard & Smith LLP, New York (Nicholas Hurzeler of counsel), for Armando Saltiel, appellant.
Vigorito, Barker, Patterson, Nichols and Porter, LLP, Garden City (Megan A. Lawless of counsel), for Imaging on Call, LLC, appellant.
Law Office of Brian Schochet, PLLC, New York (Brian Schochet of counsel), for respondents.
[*~410–411]
Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered on or about July 6, 2021, which denied defendants Armando Saltiel, M.D.'s s/h/a Armando Saltiel and Imaging on Call, LLC's CPLR 3211(a)(5) motions to dismiss the complaint against them as barred by the applicable statute of limitations, unanimously affirmed, without costs.
Plaintiffs commenced this action on November 3, 2020. On February 12, 2021, plaintiffs served an amended summons and complaint naming Dr. Saltiel and Imaging on Call, alleging three causes of action: wrongful death, conscious pain and suffering, and loss of consortium and services, for certain acts committed on May 10, 2018. Plaintiffs further alleged that their decedent passed away on September 30, 2018.
Dr. Saltiel and Imaging on Call separately moved to dismiss the complaint against them as time-barred because the series of executive orders issued by then-Governor Andrew Cuomo, as a result of the COVID-19 pandemic, constituted only a suspension, not a toll, of the applicable statute of limitations. A toll suspends the running of the statute of limitations for a finite time period, whereas a suspension only delays the expiration of the time period until the end date of the suspension (Brash v Richards, 195 AD3d 582, 582 [2d Dept 2021]).
On March 20, 2020, Governor Cuomo signed Executive Order No. 202.8 in response to the public health crisis occasioned by the COVID-19 pandemic. As relevant here, the Executive Order "tolled" any "specific time limit for the commencement, filing, or service of any legal action . . . until April 19, 2020" (9 NYCRR 8.202.8). That toll was extended through several subsequent executive orders, the last of which remained in effect until November 3, 2020.
[*~410–412]The subject executive orders constituted a toll of the applicable statute of limitations (see Brash, 195 AD3d at 582; Matter of Roach v Cornell Univ., 207 AD3d 931, 933 [3d Dept 2022]). As noted by the Second Department in Brash, the March 20, 2020 Executive Order expressly used the word "toll" and, "although the . . . executive orders issued after [Executive Order No. 202.8] did not use the word toll, those executive orders all . . . stated that the Governor hereby continue[s] the suspensions, and modifications of law, and any directives, not superseded by a subsequent directive, made in the prior executive orders" (195 AD3d at 585 [internal quotations marks and citations omitted]). We agree with the Second Department that 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 tolling of time limitations contained in such statute is within that authority" (Brash, 195 AD3d at 585 [internal quotation marks and brackets omitted]).
[*~411–412]Plaintiffs' wrongful death claim accrued on September 30, 2018 and had a two-year statute of limitations (EPTL 5-4.1). Plaintiffs' wrongful death [*2]claim was tolled on March 20, 2020 and had a remaining limitations period of six months and 10 days, which started to run again after November 3, 2020 (see Chavez v Occidental Chem. Corp., 35 NY3d 492, 505 n 8 [2020]; Matter of Roach, 207 AD3d at 933). Thus, plaintiffs' wrongful death claim was timely on February 12, 2021. Irrespective of whether plaintiffs' conscious pain and suffering and loss of consortium claims sounded in medical malpractice or general negligence, it is undisputed that these claims accrued on May 10, 2018. The statute of limitations for a medical malpractice claim is 2½ years (CPLR 214-a) and the statute of limitation for other personal injury claims is three years (CPLR 214). On March 20, 2020, these claims had a remaining limitations period of seven months and 20 days and one year, one month and 20 days, respectively. Thus, plaintiffs' conscious pain and suffering and loss of consortium claims were also timely on February 12, 2021.
We have considered defendants' remaining contentions and find them
unavailing.THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: November 1, 2022