Long COVID . . . Tolling – Yes, It Still Applies
By: Justin J. Gunnell and Benjamin J. Shack Sackler
Originally published by Law360. Read here.
Try as we might to put the COVID-19 pandemic behind us, its lingering effects are still felt to this day — including effects on New York litigation.
In the early days of the pandemic, when virtually all aspects of life and business faced severe challenges, then-New York Gov. Andrew Cuomo issued a series of executive orders that tolled, from March 20 to Nov. 3, 2020, virtually all New York litigation time limits, including all New York statutes of limitation.
This extensive 228-day tolling period continues to be highly relevant to prosecuting and defending various New York causes of action. Though the COVID-19 pandemic may no longer be front of mind, practitioners would do well to remember that COVID-19 tolling still has implications to this day.
Because the executive orders operate as a true toll rather than a mere suspension — discussed further below — causes of action that appear time-barred on their face may well be viable due to the lasting impact of the Executive Orders. Indeed, it is clear that the tolling set forth in the Executive Orders will continue to play a critical role in calculating applicable statutes of limitations in New York and federal practice for the foreseeable future.[1]
The Executive Orders
New York Executive Law Section 29-a(1) imbues the governor with the authority, “by executive order [to] temporarily suspend,” inter alia, “specific provisions of any statute . . . during a state disaster emergency, if compliance with such provisions would prevent, hinder, or delay action necessary to cope with the disaster.”
On March 20, 2020, then-Governor Cuomo relied on this authority to issue Executive Order 202.8 which tolled from that date to April 19, 2020:
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 civil practice law and rules or by any other statute, local law ordinance, order, rule, or regulation, or part thereof from.[2]
In total, the governor issued a series of nine subsequent executive orders that further extended the original Executive Order No. 202.8.[3] The final extension of the civil statute of limitations’ tolling provision came on Oct. 4, 2020, when the governor issued Executive Order No. 202.67, extending the tolling period through Nov. 3, 2020.[4]
Because the executive orders did not consistently use the word “toll,” there was initial confusion as to whether they were intended to toll the statutes of limitations, or whether they merely suspended the statutes of limitations from March 20, 2020, to Nov. 3, 2020.
The difference between a toll and a suspension can have significant consequences for the viability of a cause of action. A toll suspends the running of the applicable limitations period for a finite period, stopping the clock during the pendency of the tolling period and starting it again at the period’s conclusion for the full applicable term.
A suspension, on the other hand, does not exclude its effective duration from the calculation of the relevant time period; it merely delays limitations period that would otherwise expire during a suspension period until immediately upon the conclusion of the suspension.
In the wake of the executive orders, New York courts have consistently made clear that the orders toll, rather than merely suspend, New York statutes of limitations.
In Brash v. Richards, for instance, the Second Judicial Department in 2021 explained that “[w]hile most of the subsequent executive orders did not use the word ‘toll,’”[5] Executive Order No. 202.8 “expressly and plainly provided that the subject time limits were ‘hereby tolled.’” And, the court continued, two of the executive orders that extended the original executive order, Executive Orders Nos. 202.67 and 202.72, “referred to the temporary alternation of the subject time limits as a ‘toll.'”[6]
In the wake of Brash, each of the other appellate departments unanimously followed suit, finding that the executive orders tolled the statutes of limitations for New York causes of action.[7]
Implications For Practitioners Today
While most of the New York causes of action with statutes of limitations that had not yet expired before the COVID-19 tolling began have since expired, a number of causes of action with longer statutes of limitations may still be affected by the tolling.
For example, a breach of contract action in New York has a six-year statute of limitations.[8] A breach of contract claim that accrued in August 2019 would have ordinarily expired in August 2025. However, because of the executive orders, the plaintiff would have an additional 228 days to file, meaning the statute of limitations on the breach of contract claim would not expire until March 2026.
In other words, a cause of action that appears time-barred on its face may in fact still be available.
While many causes of action will no longer benefit from COVID-19 tolling, claims subject to the longer end of the statutes of limitations spectrum are still impacted by the tolling provisions. Causes of action such as breach of contract, fraud,[9] foreclosure actions, and actions with no other specified statute of limitations benefit from a six-year statute of limitations.[10] A claim with a six-year statute of limitations that accrues on March 20, 2020, would expire on Nov. 3, 2026, rather than on March 20, 2026.
Causes of action, such as to gain possession of real property or redeem real property from a mortgage, are subject to a 10-year statute of limitations.[11] A claim with a 10-year statute of limitations that accrues on March 20, 2020 would expire on Nov. 3, 2030, rather than on March 20, 2030.
Causes of action including, inter alia, claims to recover principal or interest on an investment bond, to enforce a money judgment, and by victims of certain assaults to recover for injuries from those offenses are subject to a 20-year limitations period.[12] And a claim with a 20-year statute of limitations that accrues on March 20, 2020 would expire on Nov. 3, 2040, rather than on March 20, 2040.
Therefore, the executive orders that tolled New York’s statutes of limitations for 228 days will continue to impact the viability of many claims decades into the future.
The chart below shows the effects of COVID-19 tolling executive orders on select New York causes of action.[13]
Impact in Federal Court
By their plain terms, the executive orders’ tolling provisions apply only to New York state causes of action — not federal claims. Indeed, a state governor would lack any authority to toll federal claims under the supremacy clause of the U.S. Constitution.[14] But we should not write off the executive orders’ impact on federal litigation just yet.
This is because federal courts may borrow state law statutes of limitations for federal claims that do not have congressionally established limitations periods. In such cases, the Executive Orders provide a basis to toll the operative limitations period.
This is precisely what happened in City Connect, LLC v. Local Union No. 3, Int’l Brotherhood of Electrical Workers, AFL-CIO, in October 2020.[15] There, the plaintiff brought a federal claim pursuant to Section 301 of the Labor-Management Relations Act.
The U.S. District Court for the Southern District of New York began its timeliness analysis by noting that “‘[b]ecause Congress did not provide a statute of limitations for suits brought under [Section] 301,’ courts in the Second Circuit ‘determine[ ] the statute of limitations for the federal cause of action by looking to the most appropriate state statute of limitations.’”[16]
In deciding to borrow not just a New York state limitations period, but also the tolling of that limitations period from the executive orders, the court reasoned that “LMRA’s policy of promoting speedy resolution of labor disputes is not frustrated by honoring these temporary executive orders.” And the court did not find persuasive the argument that, because New York State courts were closed for a period of time during the height of the COVID-19 Pandemic while federal courts remained open, no such tolling should apply.[17]
Similarly, in Doe v. State Univ. of N.Y. Purchase College, the Southern District of New York in 2022 applied a New York statute of limitations to the plaintiff’s federal Title IX claims.[18] The court found that the executive orders acted to toll the statute of limitations on the plaintiff’s Title IX claims because state tolling rules apply when federal courts borrow state statutes of limitations for federal claims.[19]
Thus, federal courts will apply COVID-19 tolling when borrowing state statute of limitation periods.
Additionally, the executive orders are applied by New York federal courts when a federal court exercises diversity jurisdiction or supplemental jurisdiction over state law claims, despite the federal courts remaining open during the COVID-19 Pandemic as, “’state statutes of limitations govern the timeliness of state law claims,’ and state law ‘determines the related questions of what events serve to commence an action and to toll the statute of limitations,’” as articulated by the U.S. Court of Appeals for the Second Circuit in its 1990 decision in Diffley v. Allied-Signal Inc.[20]
Some litigants have also sought to invoke the executive orders to advance arguments for equitable tolling. A plaintiff may be entitled to an equitable tolling of the operative statute of limitations if the plaintiff can show “'(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented timely filing,” as explained by the U.S. Supreme Court in its 2020 decision in Holland v. Florida.[21]
Courts seem reluctant to find an extraordinary circumstance that prevented timely filing simply because the COVID-19 pandemic occurred, and simply because the governor issued the executive orders. However, plaintiffs may still be able to justify tolling by articulating how the COVID-19 pandemic specifically prevented them from filing a timely complaint.[22]
Final Thoughts
So then, when can practitioners stop thinking about COVID-19 tolling? The answer depends on the cause of action being pursued.
For claims with shorter limitations periods, like Article 78 challenges,[23] libel or slander, false imprisonment, intentional emotional distress, civil assault and battery,[24] actions against the city or State,[25] wrongful death,[26] property damage,[27] product liability,[28] negligence,[29] debt collection,[30] car accidents,[31] and medical and legal malpractice,[32] COVID-19 tolling is likely a thing of the past.
However, for many causes of action with longer limitations periods, COVID-19 tolling remains a crucial consideration. Claims with a six-year statute of limitations — such as fraud claims, breach of contract claims, foreclosure actions and other actions with no otherwise specified statutes of limitations — will continue to be impacted by the executive orders until at least November 2026.[33]
And claims with even longer statutes of limitations, such as enforcing a money judgment, redeeming mortgaged property and claims for certain assaults, may be impacted through 2040 and beyond.
So, while we may be able to largely put COVID-19 out of our minds, when calculating statutes of limitation, practitioners will do well to remember COVID-19 tolling for many years to come.
[1] Recent examples include: Winbush v. N.Y. City Dep’t of Educ., No. 23-CV-1320, 2025 WL 2624350, at *11–13 (S.D.N.Y. Sept. 10, 2025) (applying the Executive Orders’ tolling provisions and finding federal Title VI and Section 1983 claims that borrow New York’s three-year limitations period for personal injury claims were timely); Kurtanidze v. Mizuho Bank, Ltd., No. 24-CV-8716, 2025 WL 1898927, at *10 n.5 (S.D.N.Y. July 9, 2025) (finding that the plaintiff’s city- and state-law claims are timely based on the application of the Executive Orders); R.M. v. Archdiocese of N.Y., 85 Misc. 3d 1259(A), at *4 (N.Y. Sup. Ct. Apr. 21, 2025) (finding plaintiff’s Child Victims Act claim timely in light of the Executive Orders’ tolling provisions); Wells Fargo Bank, N.A. as Trustee for Option One Mortgage Loan Trust 2007-5, Asset-Backed Certificates, Series 2007-5 v. Licalzi, 85 Misc. 3d 1252(A), at *1–2 (N.Y. Sup. Ct. Apr. 11, 2025) (applying the Executive Orders’ tolling provisions to a mortgage foreclosure action and determining that the claim is time-barred despite the tolling).
[2] Executive Order 202.8.
[3] Executive Order Nos. 202.14, 202.28, 202.38, 202.48, 202.55, 202.55.1, 202.60, 202.67, 202.72.
[4] Executive Order 202.67. While Executive Order 202.72 generally extended the effect of Executive Order 202.8, it excepted the civil litigation time limit tolling provision such that Executive Order 202.67 was the final extension of the statute of limitation tolling initiated by Executive Order 202.8.
[5] Brash v. Richards, 195 A.D.3d 582 (2d Dep’t 2021).
[6] Id. at 584.
[7] See Murphy v. Harris, 210 A.D.3d 410 (1st Dep’t 2022); Roach v. Cornell Univ., 207 A.D.3d 931 (3d Dep’t 2022); Harden v. Weinraub, 221 A.D.3d 1460 (4th Dep’t 2023).
[8] CPLR 213(2).
[9] As an alternative to the six-year limitations period, the statute of limitations for fraud claims allows for a two-year limitations period that begins to run when the plaintiff discovered or reasonably should have discovered their injury. CPLR 213(8). This is an example of what is known as the “Discovery Rule.” While it does not appear that the courts have addressed whether the Discovery Rule is impacted by the Executive Orders, the plain text of the Executive Orders indicate that they would apply to toll statutes of limitation keyed to the discovery of an injury. However, because statutes of limitation that are subject to the Discovery Rule are short (generally two years from the date of discovery), claims that were impacted by the Executive Orders are no longer timely.
[10] CPLR 213.
[11] CPLR 212.
[12] CPLR 211, 213-c.
[13] The causes of actions included in the following figures are illustrative examples only and are not an exhaustive list of all affected New York causes of action.
[14] See O’Rourke v. Eshan Food Corp., No. 19-CV-6162, 2020 WL 6894663, at *4 (S.D.N.Y., Nov. 24, 2020) (“Governor Cuomo’s order does not purport to toll, nor could it, the time periods established by federal law.”).
[15] City Connect, LLC v. Local Union No. 3, Int’l Brotherhood of Electrical Workers, AFL-CIO, No. 20-CV-5147, 2020 WL 5940143 (S.D.N.Y. Oct. 7, 2020).
[16]Id. at *3 (S.D.N.Y. Oct. 7, 2020) (quoting Local 802, Associated Musicians of Greater N.Y. v. Parker Meridien Hotel, 145 F.3d 85, 88 (2d Cir. 1998)); see also Bd. of Regents of Univ. of N.Y. v. Tomanio, 446 U.S. 478, 483 (1980) (borrowing analogous New York statute of limitations to federal Section 1983 claim, as well as the New York rule for tolling the statute because Congress did not establish a statute of limitations for Section 1983 claims).
[17] City Connect, 2020 WL 5940143, at *4.
[18] Doe v. State Univ. of N.Y. Purchase College, 617 F. Supp. 3d 195, 205 (S.D.N.Y. 2022).
[19] See id. at 208 (citing Bd. of Regents, 446 U.S. at 484).
[20] Diffley v. Allied-Signal, Inc., 921 F.2d 421, 423 (2d Cir. 1990) (internal quotation marks omitted); see Conn. Gen. Life Ins. Co. v. BioHealth Labs., Inc., 988 F.3d 127, 137 (2d Cir. 2021) (“[I]t is beyond cavil that federal courts apply state limitations rules to state-law claims regardless of the jurisdictional circumstances.”); see, e.g., U.S. Bank Nat’l Ass’n as Trustee to Bank of Am., N.A. v. KeyBank, Nat’l Ass’n, No. 20-CV-3577, 2023 WL 2745210, at *12-13 (S.D.N.Y. Mar. 31, 2023); Cain v. Niagara, N.Y., No. 20-CV-1710S, 2022 WL 616795, at *5 (W.D.N.Y. Mar. 2, 2022).
[21] Holland v. Florida, 560 U.S. 631, 649 (2010).
[22] See, e.g., Jamieson v. U.S. Postal Serv., No. 20-CV-6184, 2022 WL 43767, at *2 (E.D.N.Y. Jan. 5, 2022) (finding that the plaintiff failed to “articulate[] how the pandemic personally affected her”).
[23] CPLR 217(1).
[24] CPLR 215(3).
[25] CPLR 217-a.
[26] EPTL 5-4.1.
[27] CPLR 214(4), 214-c.
[28] CPLR 214(3); 214-c.
[29] CPLR 214(5).
[30] CPLR 214-i.
[31] CPLR 214(4).
[32] CPLR 214(6), 214-a.
[33] CPLR 213.