In accordance with CPLR 2219(a), the decision herein is made upon consideration of all papers filed by the parties in NYSCEF in support of and in opposition to defendant HENG ZHANG's and SHAUANGFEI WANG's (together, "Defendants") motion (Seq. No. 1) seeking an order, pursuant to CPLR § 214(5) and CPLR 3211(a)(5) and (e), dismissing, with prejudice, the complaint of plaintiff CHRISTINA CHRISTIAN ("Plaintiff") as untimely filed under the statute of limitations applicable to Plaintiff's claims. For the reasons discussed below, the motion is DENIED.

This is a personal-injury action arising out of a motor-vehicle accident that occurred on October 1, 2017, on Allen Street, at or near its intersection with Canal Street, in Manhattan, New York.

There is no dispute that the applicable statute of limitations is three years pursuant to CPLR § 214(5). As a result, because Plaintiff's injury allegedly occurred on October 1, 2017, ordinarily her complaint must have been filed by October 1, 2020, to be timely. Plaintiff filed her complaint on December 3, 2020.

Resolution of this motion turns, however, on whether then-Governor Andrew Cuomo's Executive Orders ("EOs") issued in response to the COVID-19 pandemic ^[FN1] either suspended or tolled the state's statutes of limitation. These EOs took effect on March 20, 2020, and expired on November 3, 2020.

Defendants urge that the EOs operated as a suspension of statutes of limitations rather than a toll. Thus, under Defendants' interpretation of the EOs, Plaintiff's time to file her complaint expired once the suspension was lifted.

Plaintiff, on the other hand, argues that the EOs operated as a toll of statutes of limitations. Thus, under Plaintiff's interpretation of the EOs, the time between March 20, 2020, and Plaintiff's original statute-of-limitations deadline of October 1, 2020—a period of 195 days—should be added after the toll's expiration. The new expiration date for the statue of limitations on Plaintiff's claims would, therefore, be on or around May 17, 2021, significantly later than the actual filing date.

The First Department has yet to rule on whether the EOs operated as a suspension or a toll. Subsequent to the submission of the motion, however, the Second Department issued its decision in Brash v. Richards, 195 AD3d 582 (2d Dep't 2021), in which it held that the EOs operated as a toll.

In the absence of direct First Department precedent on the issue, the Court is bound to follow Brash. McKinney's Cons. Laws of NY, Statutes § 72(b); D'Alessandro v. Carro, 123 AD3d 1, 6 (1st Dep't 2014); Mountain View Coach Lines, Inc. v. Storms, 102 AD2d 663, 664-65 (2d Dep't 1984). In addition, several other lower courts have interpreted the EOs as effecting tolls, and the Court agrees with their reasoning. See, e.g., Barnes v. Uzu, Index No. 20-CV-5885 (KMK), 2022 WL 784036, at *8-11 (S.D.NY Mar. 15, 2022); Foy v. New York, 71 Misc 3d 605 (NY Ct. Cl. 2021); Vivar v. Bsrep UA River Crossing LLC, 2021 NY Slip Op. 32153(U) (Sup. Ct. NY Cty. Oct. 28, 2021); Payne v. King Neptunes NY, LLC, 73 Misc 3d 1210(A) (NY Sup. Ct. Warren Cty. Oct. 7, 2021). To the extent that certain other courts of coordinate jurisdiction have interpreted Brash and the EOs differently,^[FN2] however, the Court is not bound by their decisions.

"A toll operates by adding the days remaining before the deadline to the date after the toll ceases to be in effect." M.C. v. New York, 74 Misc 3d 682, 689 (NY Ct. Cl. 2022); Brash, 195 AD3d at 582 ("A toll suspends the running of the applicable period of limitation for a finite time period, and '[t]he period of the toll is excluded from the calculation of the [relevant time period].'" (quoting Chavez v. Occidental Chem. Corp., 35 NY3d 492, 505 n.8 (2020))). Accordingly, the 195 days remaining on the statute of limitations when the toll went into effect on March 20, 2020, is added to November 3, 2020, when the toll expired, resulting in a new filing deadline for Plaintiff's claims of on or about May 17, 2021.

Plaintiff's initiation of this action by the filing of a complaint on December 3, 2020, is, therefore, timely.

The Court has considered the additional contentions of the parties not specifically addressed herein. To the extent that any relief requested by the movant was not addressed by the Court, it is hereby denied.

Accordingly, it is hereby:

ORDERED that defendant HENG ZHANG's and SHAUANGFEI WANG's motion (Seq. No. 1) seeking an order, pursuant to CPLR § 214(5) and CPLR 3211(a)(5) and (e), dismissing, with prejudice, the complaint of plaintiff CHRISTINA CHRISTIAN as untimely filed is DENIED; and it is further

ORDERED that the Clerk shall mark the motion (Seq. No. 1) disposed in all Court records.

This constitutes the decision and order of the Court.