Supreme Court, Montgomery County, May 28, 2021

The Landau Group (Kevin A. Landau of counsel) for defendant/counterclaim plaintiff.

Maynard, O'Connor, Smith & Catalinotto, LLP (Kelly A. Kline of counsel) for plaintiff/counterclaim defendant.

On March 16, 2021, Mary-Ann Semkiw, on behalf of Alexandra Semkiw, as her personal representative (hereinafter defendant/counter-plaintiff), by and through her attorneys of record, The Landau Group, by Kevin A. Landau, Esq., filed a motion seeking to extend her [*2]time to file a counterclaim, pursuant to Civil Practice Law and Rules § 2004. On April 12, 2021, River Ridge Living Center (hereinafter plaintiff/counter-defendant) filed an opposition by and through its attorneys of record, Maynard, O'Connor, Smith & Catalinotto, LLP, by Kelly A. Kline, Esq.

Based on the court's record, plaintiff/counter-defendant is engaged in providing residential and nursing home care services in Amsterdam, New York. Alexandra Semkiw was a resident at River Ridge from March 2013 to April 2017. It is alleged by the plaintiff/counter-defendant that Alexandra Semkiw wrongfully conveyed her assets and income to Gina Marie Semkiw, Nicholas Semkiw, and Mary-Ann Semkiw in violation of the Debtor and Creditor Law, to the detriment of plaintiff/counter-defendant. A counterclaim was asserted by Mary-Ann Semkiw, on behalf of Alexandra Semkiw, as her personal representative, alleging a claim for survival on behalf of Alexandra Semkiw, pursuant to the Estates, Powers and Trusts Law against River Ridge. Plaintiff/counter-defendant previously made a motion seeking to dismiss the interposed counterclaim pursuant, among others, to CPLR 3211 (a) (3), for{**72 Misc 3d at 955} lack of legal capacity to sue. The motion was granted without prejudice to the defendant/counter-plaintiff to re-file her counterclaim, pursuant to the grace period offered by CPLR 205 (a), provided the letters of administration^[FN*] are received within the required time frame (see River Ridge v Semkiw, Sup Ct, Montgomery County, Sept. 4, 2020, Slezak, J., index No. 2017-581). The pending motion was made by the defendant/counter-plaintiff, seeking an extension of time to file her counterclaim, given that the Surrogate's Court had not issued the letters testamentary, request for which had been filed on December 28, 2020, on the expiration of the six-month period allowed by CPLR 205. While this motion was pending, the letters testamentary were issued on May 4, 2021, and a copy thereof was provided to the court.

Defendant/counter-plaintiff brings the motion seeking an extension pursuant to CPLR 2004, which allows for an extension upon good cause shown (CPLR 2004). Plaintiff/counter-defendant's first argument in opposition to the pending motion is that the defendant/counter-plaintiff, again, lacks capacity to bring the motion. However, the Court of Appeals has recognized the right of an administrator to bring an action subsequent to the dismissal of the timely filed one, pursuant to CPLR 205 (see generally Reliance Ins. Co. v PolyVision Corp., 9 NY3d 52, 57 [2007]). Additionally, the court is not convinced by the circularity of the argument that the defendant/counter-plaintiff lacks capacity to bring the current motion to extend her time to obtain what essentially amounts to capacity from the Surrogate's Court, particularly in light of the court's further reasoning outlined below.

Plaintiff/counter-defendant's second argument in opposing the current motion is one of timeliness, or rather lack thereof. The argument is twofold: (1) that the motion was not brought before the expiration of the grace period; and (2) that the new counterclaim was not filed within the time allowed by CPLR 205. Regarding the former, this court's prior decision was signed September 4, 2020 (see River Ridge v Semkiw). It directed the filing of the decision with [*3]the Montgomery County Clerk pursuant to CPLR 2220 (id.). The decision was entered by the County Clerk on September 17, 2020. "The six-month {**72 Misc 3d at 956}period for commencing a new action asserting . . . claims pursuant to CPLR 205 (a) beg[ins] running upon the date on which the order dismissing [the prior] claims was entered" (Yates v Genesee County Hospice Found., 299 AD2d 900, 901 [4th Dept 2002] [emphasis added]). Defendant/counter-plaintiff's motion was filed March 16, 2021. It appears that, on its face, the defendant/counter-plaintiff's motion is hereby timely.

With regard to the latter argument, the court interprets the application of CPLR 205 in conjunction with defendant/counter-plaintiff's request pursuant to CPLR 2004, as well as CPLR 304, which permits the court to extend a party's time to file if the court finds that circumstances prevented immediate filing (see CPLR 304 [a]). Further, while New York courts have refused to extend the grace period allowed by CPLR 205 beyond the six months, in the absence of compelling circumstances, the six-month time limitation can be tolled in certain instances (cf. Butler v Caldwell & Cook, 142 AD2d 962 [4th Dept 1988]; see Matter of Mahoney v Board of Educ. of Mahopac Cent. School Dist., 113 AD2d 942 [2d Dept 1985] [holding that the period of six months in which second proceeding must be commenced was tolled while demand for arbitration was pending]). Additionally, while it has been said that New York does not recognize a doctrine of equitable tolling, an equivalent can be found in the doctrine of equitable estoppel, admittedly rarely applied, and the term "equitable tolling" has been referenced in New York legal opinions (see Giordano v College of Staten Is., 32 Misc 3d 1221[A], 2011 NY Slip Op 51377[U] [Sup Ct, Richmond County 2011]; Siegel & Connors, NY Prac § 56 [6th ed 2018]; but see Guobadia v Irowa, 103 F Supp 3d 325 [ED NY 2015]).

Guobadia held that equitable tolling applies "as a matter of fairness where a plaintiff has been prevented in some extraordinary way from exercising his rights," noting that the burden demonstrating the appropriateness of equitable tolling rests with the plaintiff (Guobadia at 341). This reasoning derives from federal decisions where, although applied sparingly, equitable tolling is appropriate where either of the following circumstances are present: (1) plaintiff files timely in the wrong forum, (2) defendant actively misled the plaintiff, or (3) plaintiff has been prevented from complying with the limitation period in some extraordinary way (see O'Hara v Bayliner, 89 NY2d 636 [1997]). Defendant/counter-plaintiff falls squarely within this third exception{**72 Misc 3d at 957}.

Declining to follow Shared Communications Servs. of ESR, Inc. v Goldman, Sachs & Co. (38 AD3d 325 [1st Dept 2007]), which confined equitable tolling to federal cases, the court in Billiard Balls Mgt., LLC v Mintzer Sarowitz Zeris Ledva & Meyers, LLP held:

"While it is well established that a court may not extend a statute of limitations or invent tolling principles, some tolling provisions are based upon common-law, equitable doctrines (Brown v State of New York, 250 AD2d 314 [3d Dept 1998], citing Roldan v Allstate Ins. Co., 149 AD2d at 32; cf. Shared Communications Servs. of ESR, Inc. v Goldman, Sachs & Co., 38 AD3d 325, 325 [1st Dept 2007] [declining to apply the doctrine of equitable tolling as there was no showing that plaintiff was 'actively misled' by defendant, or that it 'in some extraordinary way had been prevented from complying with the limitations period']). Whenever some 'paramount authority prevents a person from exercising his legal remedy, the time during which he is thus prevented is not to be counted against him in determining whether the statute of limitations has barred his right, even though the statute makes no specific exception in his favor in such cases' (Rodan v Allstate Ins. Co., 149 AD2d at 34; 51 Am Jur 2d, Limitation of Actions § 140 at 711; see also 54 CJS, Limitations of Actions § 86 at 121-[*4]123)." (54 Misc 3d 936, 944-945 [Sup Ct, NY County 2016] [emphasis added].)

In more recent cases, while recognizing the limited applicability of the doctrine to instances where "rare and exceptional circumstances in which a party is prevented in some extraordinary way from exercising [her] rights," the court held that "a filing may be deemed timely under the doctrine of equitable tolling where a litigant can show that [s]he has been pursuing [her] rights diligently; and that some extraordinary circumstance stood in [her] way" (Latoya v Commissioner of Social Sec., 2019 WL 6609674, *2, 2019 US Dist LEXIS 209444, *3 [ND NY, Dec. 5, 2019, No. 5:19-CV-580 (ATB)] [internal quotation marks omitted]; see also Walton v Commissioner of Social Sec., 2019 WL 3975363, 2019 US Dist LEXIS 142236 [ED NY, Aug. 21, 2019, No. 18-CV-1762 (MKB)]).

It is important to note that the last worldwide pandemic that affected the United States dates back to 1918. The CPLR was enacted in 1962, a successor to the Civil Practice Act,{**72 Misc 3d at 958} enacted in 1921. To say that the COVID-19 pandemic that affected the United States, and the entire world, beginning March 2020, is unprecedented appears to be an understatement. No case law that could have originated subsequent to 1962, or even 1921, could have anticipated the effect that a worldwide pandemic would have on the New York court system, and civil actions in particular. It is, therefore, not surprising that a case that is directly analogous to the one at hand does not exist.

While it is true that the court's prior decision was granted on September 4, 2020, the court system has only opened at full staff capacity as of May 24, 2021, four days prior to the signing of this decision. It would not be commonly anticipated that a request for letters of administration or letters testamentary would take more than four months to issue. However, in addition to the time taken to receive the letters, both Nicholas Semkiw and Mary-Ann Semkiw were infected with COVID-19. This, along with the fact that the court system operated at reduced capacity, from March 2020 to May 24, 2021, in an effort to prevent the spread of COVID-19, would certainly qualify as both good cause and extraordinary circumstances, which would have prevented defendant/counter-plaintiff from meeting the six-month deadline outlined in CPLR 205. Tangentially, the court cannot fault the administrator for failing to file the counterclaim sooner, since her capacity was not rendered into existence until May 4, 2021, when the letters testamentary were finally issued.

It is apparent that defendant/counter-plaintiff has pursued her rights diligently (see Latoya). The "paramount authority" preventing the defendant/counter-plaintiff from exercising her legal right was the Surrogate's Court, due to the extraordinary and unprecedented global pandemic (see Billiard). Equitable tolling applies in fairness to permit defendant/counter-plaintiff to now file and serve her counterclaim (see Guobadia). Finally, the court sees no prejudice to the plaintiff/counter-defendant due to the delay, which was not of defendant/counter-plaintiff's making, since plaintiff/counter-defendant has been aware of the impending counterclaim all along (see also Snodgrass v Professional Radiology, 50 AD3d 883 [2d Dept 2008]).

It is hereby ordered that defendant/counter-plaintiff's motion is hereby granted; and it is further ordered that defendant/counter-plaintiff is directed to file her counterclaim against [*5]plaintiff/counter-defendant no later than five days from the{**72 Misc 3d at 959} date of this order and serve plaintiff/counter-defendant expeditiously, as soon as service can be accomplished.