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New York unfortunately continues to remain the epicenter of the COVID-19 pandemic. It is also arguably the epicenter of commercial litigation in the United States, with a significant number of commercial contracts choosing New York law and containing forum selection clauses favoring New York courts.1 Accordingly, as New York’s law and courts evolve 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.
Tolling Deadlines and Statutes of Limitations Statewide
On March 20, Governor Cuomo issued Executive Order 202.8, 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 April 19, 2020. This effectively tolled all statutory deadlines, including statutes of limitations, for all matters and claims until April 19. On April 7, Governor Cuomo issued Executive Order 202.14, which extended the tolling of all statutory deadlines and statutes of limitations through May 7, 2020.
Revised Procedures in New York Supreme and Other Lower Courts
On March 15, 2020, the Chief Administrative Judge of the New York Unified Court System ordered that, as of March 16, all non-essential functions of the New York Supreme Courts are postponed. And, on March 22, 2020, the Chief Administrative Judge issued Administrative Order AO/78/20, which further curtailed the operations of the courts, suspending filing of all papers with the clerks of the court until further notice, except for essential matters.2 This Administrative Order effectively prohibits all paper and electronic filings in the Supreme Courts and other lower courts statewide until that date.
Beginning April 13, all lower courts within New York will begin operating “virtually.” As early as March 25, some courts, including New York City’s Criminal and Family Courts, as well as courts in Nassau and Suffolk counties, began implementing a “virtual court” model for essential and emergency matters. On April 6, 2020, the virtual court model, which allows for judges, criminal defendants, civil litigants, attorneys, and some court staff to appear by videoconference for essential and emergency court proceedings, was expanded to all courts throughout the state for essential and emergency applications.3 Effective Monday, April 13, pursuant to Administrative Order AO/85/20, the virtual court model will be expanded even further. As of that date, in addition to holding essential and emergency proceedings remotely, trial courts throughout the state began to address the following matters through remote or virtual means:
- Conferencing pending cases;
- Deciding fully submitted motions; and
- Holding discovery and other “ad hoc” conferences which do not require the filing of papers.
This Administrative Order continued the suspension on filing any new non-essential matter, as well as the filing of any papers in pending non-essential matters. Thus, until further notice, filings in any non-essential matters are still suspended.
In addition to these statewide changes, the individual Supreme Courts have issued their own orders containing guidance on their own individual operations. For instance, many of the Supreme Courts – including for New York County, Kings County, Queens County, Nassau County, and Suffolk County, – have set forth individualized procedures for how parties should file papers in emergency and essential matters, and for scheduling, preparing for and appearing at virtual court proceedings. Parties and their attorneys with pending matters in the New York Supreme Courts should be sure to review these individual orders carefully. A running list of updates regarding changes to procedures in the lower courts is accessible on the New York Unified Court System’s website.
Revised Procedures in New York Appellate Courts
Pursuant to its April 6, 2020 Notice to the Bar, the New York Court of Appeals will not hear oral argument during its April/May session. The Court will continue to consider previously filed pending matters and issue decisions.
Each of the First, Second, Third, and Fourth Judicial Departments of the Appellate Division have issued Orders suspending all deadlines for all appeals. This includes deadlines for perfecting appeals, and filing briefs and motion papers. These Orders do not extend deadlines in the CPLR or otherwise set by statute – such as that for filing and serving a Notice of Appeal – but Governor Cuomo’s Executive Orders 202.8 and 202.14, tolling all statutory deadlines until May 7, effectively extends such deadlines as well.
The four Departments have all also limited their operations in additional ways, such as adjourning dates for argument and waiving any requirements for paper filing of briefs and motions. Parties and attorneys with pending appeals in any of the four Appellate Division Departments should check these courts’ websites (1st, 2nd, 3rd, 4th) regularly for updates.
Revised Procedures in the Federal Courts in New York
Though operations in the federal courts located in New York have not been curtailed as severely as New York’s state courts, there are still significant changes.
The Second Circuit Court of Appeals is still hearing oral arguments, but only remotely by a teleconference platform. Alternatively, parties that have oral argument scheduled may request to submit the appeal without argument for a decision. On March 16, 2020 the Court ordered a 21-day extension of time for all filings and deadlines that were originally due between March 16, 2020 and May 17, 2020, and which are now due beginning April 6, 2020 through June 5, 2020. Absent “an extraordinary circumstance,” the Court will not grant any additional extensions of time to file. Parties and attorneys with matters pending in the Second Circuit should review the Court’s website for further information. The Court has also issued an Order suspending the requirement for filing of paper copies. More information regarding the Federal Appellate Courts’ COVID-19 procedures can be found in Locke Lord’ prior QuickStudy.
In the Southern District of New York, pursuant to the Court’s Notice regarding operations between April 13, 2020 and May 4, 2020, the courthouse located at 40 Foley Square is closed for all S.D.N.Y matters and the courthouse located at 500 Pearl Street is open only to hear applications for temporary restraining orders (“TRO”) or other emergency relief. The Brieant Courthouse, located in White Plains, remains open for emergency applications. In addition, all jury trials have been suspended until at least June 1, 2020, and possibly later.
In the Eastern District of New York, pursuant to Administrative Order 2020-06, all jury trials scheduled to begin before April 27, 2020 are continued pending further order of the Court. Individual judges are permitted to hold hearings, conferences and bench trials, but are encouraged to do so by telephone or video conference, and are also encouraged to adjourn matters or deadlines, or stay litigation, where in-person meetings, interviews, depositions, and travel are necessary to prepare for those matters.
In the Bankruptcy Courts for both the S.D.N.Y. and E.D.N.Y, all hearings and conferences are being conducted telephonically. In both courts, litigants are encouraged to review the individual judge’s rules regarding how telephonic conferences are to proceed.
In addition to these revised procedures governing all matters in these courts, individual judges have also been issuing revised rules in light of COVID-19. Parties and attorneys with matters in these courts should review the rules of the assigned district and magistrate judges for their specific rules. There are some trends that appear to be emerging amongst the judges in the Southern and Eastern Districts, such as:
- Prohibiting paper submissions, absent undue hardship, including dispensing with any requirement for courtesy copies;
- Holding all conferences and hearings telephonically;
- Requiring parties seeking to file an application for a TRO or other emergency relief to submit the application by email; and
- Discouraging – and often outright prohibiting –hand-delivery of any papers to chambers or the clerk’s office.
The procedures in New York state and federal courts are evolving rapidly as the COVID-19 pandemic continues to evolve. Litigants should continue to review any new Executive Orders, Administrative Orders, and individual courts’ and judges’ notices, orders, and revised rules to ensure they are up-to-speed on the latest rules and requirements and best practices during this time.
Visit our COVID-19 Resource Center often for up-to-date information to help you stay informed of the legal issues related to COVID-19.
1 See e.g., Jens Dammann and Henry Hansmann, Globalizing Commercial Litigation, 94 Cornell Law Rev. 1, 28 2008), available here.
2 The Order contains a list of essential matters which, in the civil context, include certain Mental Hygiene Law applications, emergency applications in guardianship matters, certain temporary orders of protection, emergency applications related to the coronavirus, emergency Election Law applications, extreme risk protection orders, applications addressing landlord lockouts, applications addressing serious code violations, applications addressing serious repair orders, and applications for post-eviction relief. The Order also provides a catch-all of “any other matter that the court deems essential.” It is generally understood that commercial matters are not deemed essential by New York courts at this time.
3 “Essential” matters are defined in the same way as in AO/78/20.