Recent executive and administrative orders carrying-out COVID-19 mitigation and public safety measures will impact litigation within the Article 78 context, specifically the deadlines for commencing a proceeding to challenge municipal determinations. This impact is significant given the short statutes of limitations periods typical to land use litigation. Governor Andrew Cuomo’s Executive Order 202.8 (“Executive Order“) “temporarily suspends or modifies” various time-frames dictated by applicable statute, law, rule or regulation; in relevant part: “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 this state, including . . . the civil practice law and rules . . . is hereby tolled from the date of this executive order [March 20, 2020] until April 19, 2020,” i.e. 30 days.
Following the Executive Order, the Hon. Janet DiFiore, Chief Judge of the Court of Appeals, issued Administrative Order 78/20 (“Administrative Order“), which states that “no papers shall be accepted for filing by a county clerk or a court in any matter of a type not included on the list of essential matters attached.” An action or proceeding is commenced by the filing thereof, and challenges to land use and municipal determinations are not included on the list of essential matters.
Despite the present health crisis and preclusion of court filings in this subject area, municipal boards and agencies may have recently conducted business, and they may continue to conduct business via means that comply with the Open Meetings Law (as modified by Executive Order 202.1) and protect the public health. Thus, boards and agencies may have recently made, and can continue to make, decisions, but challengers are presently prohibited from pursuing judicial appeals of such decisions in the Courts. Analyzing the Executive Order will be critical to understanding the litigation risk from an applicant’s perspective, as well as how a challenger should anticipate dealing with any statute of limitations issues.
Interpreting the Executive Order’s Effects on Statutes of Limitations
The Executive Order is not without ambiguity; it uses verbiage such as “suspend” and “toll,” and each word may have different import. For example, on the one hand, Black’s Law Dictionary defines “toll” as “to stop the running of; to abate.” Given the definition and the plethora of jurisprudence on the subject, this means that the statute of limitations period is paused for the duration of the tolling period. Put another way, the statute of limitations is extended for the same amount of time that tolling is in effect (because the period is not running during that time). On the other hand, “suspend” means “to interrupt; postpone; defer” or “to temporarily keep a person from exercising a right or privilege.” This could mean that any commencement deadline that falls between March 20th and April 19th will only be deferred until April 19th – and no additional time will be added. That said, “suspend” could also be interpreted to support a pausing or tolling of the time-period.
In addition, the Office of Court Administration issued a statement on its website noting the Executive Order “exten[ded]” statutes of limitation[s],” and the Administrative Order noted that the Executive Order “suspend[ed]” statutes of limitation[s].” This verbiage appears to support a broader interpretation to toll time-frames, as opposed to merely deferring to April 19th. In any event, applicants and litigants should be cautious and prudent, and seek to avoid any pitfalls based upon how the Executive Order is ultimately interpreted or applied.
Applying the Executive Order in the Article 78 Context – Assuming Statutes of Limitations are Tolled
The statute of limitations for challenging a zoning board’s determination is 30 days after the date of filing of that determination with the town or village clerk. The statute of limitations for commencing a proceeding to challenge many other board or agency determinations, e.g. environmental review, is fourth months from when it becomes final and binding. Assuming the Executive Order tolls and extends the statute of limitations, then any statute of limitations expiring during the tolling period is extended for 30 days.
For example, if a zoning board determination was issued and filed on March 1, 2020, then the statute of limitations would ordinarily expire on March 31, 2020. Applying the Executive Order’s tolling, the statute of limitations paused on March 20th, and does not begin to run again until April 19th. By adding 30-days (the tolling period) to what would have been the expiration date (March 31st), the new commencement deadline expires April 30, 2020.
The analysis for board or agency determinations filed and/or final after March 20th differs slightly. In this scenario, the tolling period is shorter because nothing is paused on March 20th; rather, the statute of limitations time-frame is paused on the date of filing and/or finality – when the claim for the challenge accrues. In other words, the tolling period is only the time between the filing and/or finality and April 19th.
For example, if a zoning board determination was issued and filed on March 30, 2020, then the tolling period is from March 30th (when the claim accrues) through April 19th – 20 days. Despite a shorter tolling period, the time to commence will be later because the statute of limitations period only begins to run on April 19th. Thus, an Article 78 proceeding to challenge a zoning board’s determination made and filed on March 30th must be commenced by May 19, 2020 (the full 30-day statute of limitations period, which starts to run on April 19th).
It should also be noted that CPLR Section 306-b plays a vital role in Article 78 litigation, and is also affected by the Executive Order. Section 306-b requires that, where the statute of limitations is four months or less, service of the pleadings shall be made not later than 15 days after the statute of limitations expires. The Executive Order’s impact upon statutes of limitations will have a concomitant affect upon the deadline imposed by Section 306-b.