Murphy v. Harris

Citation Codes

Equivalent Citations

citation codes

Docket Number

No. 16564

Attorney(S)

Lewis Brisbois Bisgaard & Smith LLP, New York (Nicholas Hurzeler of counsel), for Armando Saltiel, appellant. Vigorito, Barker, Patterson, Nichols and Porter, LLP, Garden City (Megan A. Lawless of counsel), for Imaging on Call, LLC, appellant. Law Office of Brian Schochet, PLLC, New York (Brian Schochet of counsel), for respondents.

Judges

Judith J. Gische

Acts

Civil Practice Law And Rules — Accelerated Judgment — Motion to dismiss
Executive — State And Local Natural And Man-Made Disaster Preparedness — Suspension of other laws
Civil Practice Law And Rules — Limitations Of Time — Action for medical, dental or podiatric malpractice to be commenced within two years and six months; exceptions
— CIVIL PRACTICE LAW AND RULESLIMITATIONS OF TIME — Actions to be commenced within three years: for non-payment of money collected on execution; for penalty created by statute; to recover chattel; for injury to property; for personal injury; for malpractice other than medical, dental or podiatric malpractice; to annul a marriage on the ground of fraud

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Smart Summary

Factual and Procedural Background

Plaintiffs commenced this action on November 3, 2020, alleging wrongful death, conscious pain and suffering, and loss of consortium and services related to acts committed on May 10, 2018. The decedent passed away on September 30, 2018. Defendants Armando Saltiel, M.D. and Imaging on Call, LLC were named in an amended summons and complaint served on February 12, 2021. They moved to dismiss the complaint on the grounds that it was barred by the statute of limitations. The Supreme Court, New York County, denied defendants' motions to dismiss, and this order was unanimously affirmed.

Legal Issues Presented

Whether the series of executive orders issued by Governor Andrew Cuomo during the COVID-19 pandemic tolled or merely suspended the applicable statutes of limitations for the plaintiffs’ claims.
Whether the plaintiffs’ claims were timely filed given the tolling or suspension of the statute of limitations under the executive orders.

Arguments of the Parties

Defendants' Arguments

The executive orders issued by Governor Cuomo constituted only a suspension, not a toll, of the statute of limitations.
Because a suspension merely delays the expiration date rather than pausing the limitations period, the claims were time-barred.

Plaintiffs' Arguments

The executive orders tolled the statute of limitations, effectively pausing the running of the limitations period during the state of emergency.
Therefore, the claims were timely filed within the extended limitations period.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Brash v Richards, 195 A.D.3d 582 (2d Dept 2021)	Distinction between tolling and suspension of statutes of limitations; executive orders tolled statutes of limitations during COVID-19 emergency.	The court agreed with the Second Department's interpretation that the executive orders tolled the statute of limitations and that the Governor had authority under Executive Law § 29-a(2)(d) to toll time limitations.
Matter of Roach v Cornell Univ., 207 A.D.3d 931 (3d Dept 2022)	Support for tolling effect of executive orders during COVID-19 state of emergency.	The court cited this case to confirm that the executive orders tolled the statute of limitations, consistent with the reasoning in Brash.
Chavez v Occidental Chem. Corp., 35 N.Y.3d 492 (2020)	Calculation of remaining limitations period after tolling.	Used to determine that the wrongful death claim was timely when the statute of limitations resumed running after the toll ended.

Court's Reasoning and Analysis

The court analyzed the nature of the executive orders issued by Governor Cuomo in response to the COVID-19 pandemic, focusing on whether these orders tolled or merely suspended the statute of limitations. The March 20, 2020 Executive Order No. 202.8 explicitly used the term "toll," and subsequent orders continued these tolling provisions. The court relied on the authority granted by Executive Law § 29-a(2)(d), which permits the Governor to alter or modify statutory requirements during a state disaster emergency, including tolling time limitations.

The court distinguished tolling from suspension, noting that tolling pauses the statute of limitations, whereas suspension only delays the expiration date. By adopting the reasoning in Brash and Matter of Roach, the court concluded the executive orders tolled the statutes of limitations applicable to the plaintiffs' claims.

Applying this to the facts, the court calculated the remaining time on the limitations periods for the wrongful death, conscious pain and suffering, and loss of consortium claims as of March 20, 2020, and determined that the claims were timely filed on February 12, 2021, after the toll ended on November 3, 2020. The court rejected defendants' arguments to the contrary and found their remaining contentions unavailing.

Holding and Implications

The court affirmed the denial of defendants' motions to dismiss the complaint as barred by the statute of limitations.

The decision directly affects the parties by allowing the plaintiffs’ claims to proceed as timely filed. The court did not establish new precedent but followed and applied existing case law interpreting the tolling effect of COVID-19 related executive orders on statutes of limitations.

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Mary Murphy, as Executor of the Estate of Patrick J. Murphy, Jr., et al., Plaintiffs-Respondents, v. Frederick Harris, et al., Defendants Armando Saltiel, et al., Defendants-Appellants.

Lewis Brisbois Bisgaard & Smith LLP, New York (Nicholas Hurzeler of counsel), for Armando Saltiel, appellant.

Vigorito, Barker, Patterson, Nichols and Porter, LLP, Garden City (Megan A. Lawless of counsel), for Imaging on Call, LLC, appellant.

Law Office of Brian Schochet, PLLC, New York (Brian Schochet of counsel), for respondents.

Before: Gische, J.P., Gesmer, Oing, Kennedy, Scarpulla, JJ.

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered on or about July 6, 2021, which denied defendants Armando Saltiel, M.D.'s s/h/a Armando Saltiel and Imaging on Call, LLC's CPLR 3211(a)(5) motions to dismiss the complaint against them as barred by the applicable statute of limitations, unanimously affirmed, without costs.

Plaintiffs commenced this action on November 3, 2020. On February 12, 2021, plaintiffs served an amended summons and complaint naming Dr. Saltiel and Imaging on Call, alleging three causes of action: wrongful death, conscious pain and suffering, and loss of consortium and services, for certain acts committed on May 10, 2018. Plaintiffs further alleged that their decedent passed away on September 30, 2018.

Dr. Saltiel and Imaging on Call separately moved to dismiss the complaint against them as time-barred because the series of executive orders issued by then-Governor Andrew Cuomo, as a result of the COVID-19 pandemic, constituted only a suspension, not a toll, of the applicable statute of limitations. A toll suspends the running of the statute of limitations for a finite time period, whereas a suspension only delays the expiration of the time period until the end date of the suspension (Brash v Richards, 195 A.D.3d 582, 582 [2d Dept 2021]).

On March 20, 2020, Governor Cuomo signed Executive Order No. 202.8 in response to the public health crisis occasioned by the COVID-19 pandemic. As relevant here, the Executive Order "tolled" any "specific time limit for the commencement, filing, or service of any legal action... until April 19, 2020" (9 NYCRR 8.202.8). That toll was extended through several subsequent executive orders, the last of which remained in effect until November 3, 2020.

The subject executive orders constituted a toll of the applicable statute of limitations (see Brash, 195 A.D.3d at 582; Matter of Roach v Cornell Univ., 207 A.D.3d 931, 933 [3d Dept 2022]). As noted by the Second Department in Brash, the March 20, 2020 Executive Order expressly used the word "toll" and, "although the... executive orders issued after [Executive Order No. 202.8] did not use the word toll, those executive orders all... stated that the Governor hereby continue[s] the suspensions, and modifications of law, and any directives, not superseded by a subsequent directive, made in the prior executive orders" (195 A.D.3d at 585 [internal quotations marks and citations omitted]). We agree with the Second Department that Executive Law § 29-a(2)(d) "indicates that the Governor is authorized to do more than just suspend statutes during a state disaster emergency; he or she may alter or modify the requirements of a statute, and tolling of time limitations contained in such statute is within that authority" (Brash, 195 A.D.3d at 585 [internal quotation marks and brackets omitted]).

Plaintiffs' wrongful death claim accrued on September 30, 2018 and had a two-year statute of limitations (EPTL 5-4.1). Plaintiffs' wrongful death claim was tolled on March 20, 2020 and had a remaining limitations period of six months and 10 days, which started to run again after November 3, 2020 (see Chavez v Occidental Chem. Corp., 35 N.Y.3d 492, 505 n 8 [2020]; Matter of Roach, 207 A.D.3d at 933). Thus, plaintiffs' wrongful death claim was timely on February 12, 2021. Irrespective of whether plaintiffs' conscious pain and suffering and loss of consortium claims sounded in medical malpractice or general negligence, it is undisputed that these claims accrued on May 10, 2018. The statute of limitations for a medical malpractice claim is 2½ years (CPLR 214-a) and the statute of limitation for other personal injury claims is three years (CPLR 214). On March 20, 2020, these claims had a remaining limitations period of seven months and 20 days and one year, one month and 20 days, respectively. Thus, plaintiffs' conscious pain and suffering and loss of consortium claims were also timely on February 12, 2021.

We have considered defendants' remaining contentions and find them unavailing.