Locke Lord QuickStudy: The State of New York Courts During COVID-19, Continued (May 12, 2020)

Since the beginning of the COVID-19 pandemic, there have been countless changes to procedures and operations in New York’s state and federal courts. As New York’s law and courts continue evolving to keep pace with the changing circumstances created as a ‎result of the pandemic, it is useful for litigants and potential litigants to keep up-to-date with ‎these changes.‎

Most notably, Governor Cuomo issued an Executive Order extending the tolling of many statutory deadlines from May 7, 2020 through June 6, 2020. In addition, the New York Supreme and other lower courts have begun allowing filings in pending non-essential cases, and the suspension on deadlines for filing briefs, records, appendices and motions in the First and Second Departments of the Appellate Division have now been lifted. These changes, as well as other changes in the state and federal courts in New York, are described in more detail below.

Tolling Deadlines and Statutes of Limitations Statewide

As outlined in Locke Lord’s April 14 QuickStudy, Governor Cuomo had previously issued Executive Orders 202.8, and subsequently, 202.14, which tolled all deadlines for ‎‎“the commencement, filing, or service of any legal action, notice, motion, or other process or ‎proceeding,” under 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 courts act,” ‎and “any other statute, local law, ordinance, order, rule or regulation,” from the date of the ‎Executive Order through May 7, 2020. This effectively tolled all statutory deadlines, including ‎statutes of limitations, for all matters and claims until May 7.

On May 5, 2020, Governor Cuomo issued Executive Order 202.28, which extended those deadlines until June 6, 2020, except for deadlines under:

• certain provisions of 10 NYCRR 405.9; 10 NYCRR 400.9; 10 NYCRR 400.11, 10 NYCRR 405; ‎‎10 NYCRR 403.3; 10 NYCRR 403.5; 10 NYCRR 800.3; 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; and 14 NYCRR 517;‎
  
  
• Mental Hygiene Law Sections 41.34; 29.11; and 29.15;‎
  
  
• Public Health Law Sections 3002, 3002-a, 3003, and 3004-a to the extent it would ‎have allowed the Commissioner to make determination without approval by a ‎regional or state EMS board;‎
  
  
• 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 ‎sections 58-1.11, 405.10, and 415.22 of Title 10 of the NYCRR;‎
  
  
• 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, upon approval by the Commissioner of OPWDD, as applicable only for ‎temporary changes to physical plant, bed capacities, and services provided; for ‎facilities under the Commissioner’s jurisdiction.‎

Litigants and attorneys should review the Executive Order for more detail on which deadlines are extended.

Revised Procedures in New York Supreme and Other Lower Courts

As explained in Locke Lord’s prior QuickStudies, on March 22, 2020, the Chief Administrative Judge of the New York Unified Court System issued Administrative Order AO/78/20, ‎which suspending the filing of all papers with the clerks ‎of the courts until further notice, except for essential matters‎. On Monday, May 4, 2020 that suspension was lifted pursuant to the Chief Administrative Judge’s April 30, 2020 Memorandum. As of May 4, litigants are permitted to file “[n]ew motions, responsive papers to previously filed motions, and other applications … in pending cases.” This Memorandum does not appear to allow for the commencement of new, non-essential actions.

Parties may commence with filings in electronically filed matters on the NYSCEF system, or, in matters that are not subject to electronic filing, by the courts’ Electronic Document Delivery System (“EDDS”). More detailed instructions for sending or filing documents through EDDS may be found on the EDDS FAQ page.

In addition to resuming filing in pending, non-essential matters, the Chief Administrate Judge’s Memorandum also noted that Courts are to continue virtually conferencing pending matters, hearing remote oral argument on certain motions, and addressing and resolving “fully-submitted outstanding motions and other undecided matters.”

Revised Procedures in New York Appellate Courts

As described in Locke Lord’s April 21 QuickStudy, the Appellate Courts in both the First and Second Departments, have resumed calendaring appeals and motions for argument or submission and scheduling pre-argument conferences. In both courts, arguments will proceed via Skype.

In its May 8, 2020 Order, the First Department rescinded its March 17, 2020 Order suspending all deadlines for filing briefs, records, appendices, and motions. Pursuant to the May 8 Order, the deadlines for the remaining 2020 terms of the Court (September through December 2020 terms) are reinstated, and the deadline for filing of responding and reply papers that have not yet been filed on motions which were returnable between March 16, 2020 and May 4, 2020 is now May 22, 2020. The Order instructs that parties shall comply with any other filing deadlines set by the Court, and notes that the requirement for filing hard copy briefs, records, appendices, and motions continues to remain suspended.  

In the Second Department, the Court issued Administrative Order ADM 2020-0506 on May 6, 2020, which lifted the suspension on filing deadlines “in a limited matter.” Pursuant to that Order, the Court set certain deadlines for the filing of briefs in all criminal appeals, the filing of records, appendices, and briefs in all actively managed matters¹, and for all motions. Parties and attorneys with appeals pending in the Second Department should review the Administrative Order to determine whether these deadlines apply.

Revised Procedures in the Federal Courts in New York

As explained in Locke Lord’s April 14 QuickStudy, the U.S. District Courts for the Southern and Eastern Districts of New York have closed certain courthouses while maintaining limited operations in others. The S.D.N.Y. courthouse in White Plains, has remained open to hear applications for temporary restraining orders (“TRO”) and other emergency relief.  Furthermore, the Moynihan Courthouse at 500 Pearl Street/200 Worth Street will be open, but only to hear matters in which immediate relief is sought pursuant to Rule 65(b) of the Federal Rules of Civil Procedure.  The E.D.N.Y. remains open, but with limited operations in both the Brooklyn and Central Islip courthouses to support only essential functions in criminal and civil matters.  These Courts have begun holding telephonic and virtual conferences and hearings, as have the U.S. Bankruptcy Courts for the Southern and Eastern Districts of New York. 

In addition, on April 21, The U.S. District Court for the E.D.N.Y. issued Administrative Order No. 2020-15, which ordered that all petit jury selection and jury trials scheduled to commence between April 27 and June 15, and all grand jury selections scheduled before June 15, be continued pending Court Order. The Administrative Order also instructed that trial specific deadlines will be at the discretion of the assigned judge during this time period, and encourages judges to conduct court proceeding by telephone or video conference.

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For more information on the changes to procedures and operations in New York’s state and federal courts during COVID-19, please refer to Locke Lord’s April 14 and April 21 QuickStudies. Locke Lord will continue to publish QuickStudies outlining additional changes to New York courts’ procedures and operations. In the meantime, parties and their attorneys should continue to review the courts’ websites and individual judges’ rules:

• New York Unified Courts System (New York Supreme and other lower courts)
• New York Court of Appeals
• New York Supreme Court Appellate Division, First Judicial Department
• New York Supreme Court Appellate Division, Second Department
• New York Supreme Court Appellate Division, Third Department
• New York Supreme Court Appellate Division, Fourth Department
• United States District Court, Southern District of New York
• United States District Court, Eastern District of New York
• United States District Court, Northern District of New York
• United States District Court, Western District of New York
• United States Bankruptcy Court, Southern District of New York
• United States Bankruptcy Court, Eastern District of New York
• United States Court of Appeals for the Second Circuit