COVID 19 Rulings
This week we wanted to take the opportunity to revisit the effect of former Governor Cuomo’s Executive Orders which were issued in response to the Covid-19 outbreak, as they relate to the extension of deadlines and tolling periods of certain types of Liens.
You may recall that then Governor Cuomo executed Executive Order No.202.8 on March 20, 2020, as well as a series of nine subsequent Executive Orders (Executive Order Nos. 202.14, 202.28, 202.38, 202.48, 202.55, 202.55.1, 202.60, 202.67, 202.72) that extended the suspension or tolling periods, eventually through November 3, 2020. While there was some initial discussion as to whether the Governor had the authority to “toll” such deadlines, the Courts ultimately determined that the tolling period ran from March 17, 2020, through November 3, 2020; a period of 228 days. Under the holdings of the cases linked below, the Courts have held that the applicable 228-day time period does not count toward the “life” of the lien in question; whether a judgment, mechanic’s lien or Notice of Pendency (even though an LP is not a lien in and of itself), etc.
Below are a few examples which clarify how the tolling period is applied in each situation:
Judgment Docketed Before Tolling Period:
Judgment entered and docketed on September 15, 2012 (prior to the tolling period). Generally speaking, under CPLR 5203, a judgment is a lien for ten (10) years. Without the toll period, that Judgment would typically expire on September 15, 2022. However, due to the tolling period, it enjoys an extension of 228 days afterwards because the tolling period does not count towards the 10-year lifespan of the judgment. That means that the judgment that was entered and docketed on September 15, 2012, will not actually expire until May 1, 2023.
Mechanic’s Lien Docketed During Tolling Period:
Mechanic’s Lien is docketed on May 1, 2020, during the tolling period. Ordinarily, it would have expired on May 1, 2021. However, since the tolling period was in place until November 3, 2020, the 1-year duration of the mechanic’s lien did not begin to run until November 3, 2020, meaning that said mechanic’s lien would not have expired until November 3, 2021.
Judgment/Mechanic’s Lien Docketed After Tolling Period:
A judgment or mechanic’s lien docketed after the tolling period does not enjoy any extension of time based upon Governor Cuomo’s executive orders.
The cases can be viewed by clicking the following links:
https://mcusercontent.com/684414a9e2c939c9532812949/files/d72ceda7-115d-ef48-70dc-33426248f298/Case_Brash_v_Richards_Explaining_Executive_Orders_and_Tolling_Periods_v._Suspension_.pdf
https://mcusercontent.com/684414a9e2c939c9532812949/files/fadfc107-43cc-b13a-1928-061fb7aa8bf5/Case_Foy_v._State_of_New_York_Explaining_Executive_Orders_and_Tolling_v._Suspension_of_Statutes_of_Limitation_.01.pdf
https://mcusercontent.com/684414a9e2c939c9532812949/files/8c5692af-7fed-f0a8-2887-f3bf616719d3/Case_Matter_of_701_River_St._Assoc._LLC_Explaining_Tolling_Periods_and_Executive_Orders_.01.pdf
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