Supreme Court, Kings County, January 5, 2022

Law Office of Kevin J. Philbin, New York City (Michael P. Beckley of counsel), for Star-Delta Electric, LLC, defendant/third-party defendant.

Elefterakis, Elefterakis & Panek, New York City (Albert K. Kim of counsel), for plaintiff.

Haworth Barber & Gerstman, LLC, New York City, for Integrated Systems & Services, Inc., defendant/third-party plaintiff.

Eustace, Prezioso & Yapchanyk, New York City, for 40 Wall Street Holdings Corp. and another, defendants.

This is a personal injury action which arises from an accident which took place on March 1, 2018, at 40 Wall Street, New York, NY. Plaintiff alleges, in her second amended complaint, that she was injured when she was "struck by falling debris/objects while lawfully inside of defendants' premises." The action was commenced on June 13, 2019.

In motion sequence No. 4, defendant Star-Delta Electric, LLC (hereafter Star) moves pursuant to CPLR 3211 (a) (5) to dismiss the complaint as against it on the grounds that the causes of action alleged against it are time-barred by the applicable three-year statute of limitations.

Movant Star was not named as a defendant in the original complaint, nor in the amended [*2]complaint, which was amended with leave of court, but was added in the second amended complaint, filed July 29, 2021, following the commencement of the third-party action against movant on May 3, 2021, and pursuant to CPLR 1009. Movant Star answered the third-party complaint on July 26, 2021. Plaintiff had 20 days to add movant as a direct defendant, counted from the date movant answered the third-party complaint, and as plaintiff did so three days after movant answered the third-party complaint, the second amended complaint was timely.

Movant Star electronically filed its answer to the plaintiff's second amended complaint on September 20, 2021, one day before it filed this motion. The first affirmative defense therein states: "That the cause of action alleged in the complaint herein occurred on the date of March 1, 2018 more than three (3) years prior to the commencement of this action." This affirmative defense does not specifically mention the statute of limitations, but the court will consider it as properly asserted.

Movant Star argues that as this is a tort action, the claims against it "are barred by the three-year statute of limitations, {**74 Misc 3d at 383}which expired on March 1, 2021." Counsel also avers that plaintiff needed leave of court to name and serve it, which is not correct (see CPLR 1009), and that the complaint was not served until August 25, 2021, on Star, so the statute of limitations had run five months earlier.

Plaintiff opposes the motion and is the only party to oppose. Counsel argues that the statute of limitations had not run, as the Governor's executive orders tolled it. Specifically, he states (NY St Cts Elec Filing [NYSCEF] Doc No. 114 ¶ 5), "Governor Andrew M. Cuomo tolled the applicable statute of limitations from March 20, 2020 to November 3, 2020. A copy of Governor Cuomo's Executive Orders 202.8, 202.14, 202.28, 202.38, 202.48, 202.55, 202.55.1, 202.60, 202.67, and 202.72 are collectively annexed herein as Exhibit 'A' " (emphasis omitted). Counsel also annexes a copy of the Appellate Division, Second Department's decision Brash v Richards (195 AD3d 582 [2021]) to support the plaintiff's position.

Plaintiff's counsel misinterprets the Brash decision, which explains that the Governor did not toll all statutes of limitations, but only suspended them, due to the COVID-19 pandemic, and that he terminated the suspension on November 3, 2020. Here, the statute of limitations did not run until March 1, 2021, and as such, was not affected in any way by the Governor's executive orders. The court is cognizant that several court decisions have interpreted Brash as plaintiff's counsel has, but is not bound by them, and does not agree with those interpretations (see e.g. Vivar v BSREP UA Riv. Crossing LLC, 2021 NY Slip Op 32153[U] [Sup Ct, NY County 2021]).

To clarify, a toll stops the running of the applicable period of limitations for a finite time period, and the period of the toll is excluded from the calculation of the relevant limitations period. Unlike a toll, a suspension does not exclude its duration from the calculation of the relevant time period. Rather, it simply delays the expiration of the time period or filing deadline until the end date of the suspension (see e.g. Matter of Powell, 73 Misc 3d 398, 399 [Sur Ct, Erie County 2021]).

Here, if there was a toll, the period from the Governor's first order on March 20, 2020, to his last order on November 3, 2020 (which is apparently 228 days as calculated in several court{**74 Misc 3d at 384} decisions^[FN*]), would be added to the statute of limitations for every person with a claim who had [*3]not filed suit by March 20, 2020, and would also be added to every type of litigation deadline that arose during the suspension period. That is not what was intended, nor is it what was provided for in the executive orders. With a suspension, a party can only benefit from the executive orders if his or her statute of limitations or filing deadline fell within the suspension period. In Brash, it did, and the Court found that the statutory 30 days to file an appeal, which fell within the suspension period, was to be interpreted as 30 days from November 3, 2020, when the suspension ended. The last of the orders, Executive Order (A. Cuomo) No. 202.72 (9 NYCRR 8.202.72), issued on November 3, 2020, states as follows, in pertinent part:

"Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency

"WHEREAS, on March 7, 2020, I issued Executive Order Number 202, declaring a State disaster emergency for the entire State of New York, and . . .

"Pursuant to Executive Order 202.67, the suspension for civil cases in Executive Order 202.8, as modified and extended in subsequent Executive Orders, that tolled 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 the state, including but not limited to the family court act, the civil practice law and rules, the court of claims act, the surrogate's court procedure act, and the uniform court acts, or by any statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby no longer in effect as of November 4, 2020" (emphasis added).

It is clear to the undersigned that the Governor imposed a suspension, not a toll. Accordingly, it is ordered that the motion is granted, and the plaintiff's complaint is dismissed as against defendant Star-Delta Electric, LLC.