The mathematics of calculating the statute of limitations in light of the Covid tolling periods is discussed in Lewner v Dahill 2023 NY Slip Op 30629(U) February 28, 2023
Supreme Court, New York County Docket Number: Index No. 805366/2021 Judge: Leslie A. Stroth. This decision serves as a template in adding days to the underlying statute of limitations for cases subject to Covid tolling between March 20, 2020 and November 2, 2020.
“The instant motion arises out of an action to recover damages for alleged breach of contract, legal malpractice, and breach of fiduciary duty. Plaintiff Charles Lewner (plaintiff), represented . by counsel, alleges that defendants William Dahill and Wollmuth Maher & Deutsch, LLP (together, defendants) failed o properly represent-him in two separate legal proceedings – an Article 81 guardianship proceeding seeking guardianship of the person and property of his late father and a proceeding concerning the estate of his late mother.”
“Here, all claims are time-barred. With respect to plaintiff’s first cause of action, the Article 81 guardianship proceeding concerning plaintiff’s late father, plaintiff alleges in his amended complaint that defendants committed malpractice in agreeing to the terms of a stipulation involving the management of real property dated January 20, 2017, which was so-ordered by Honorable Tanya R. Kennedy. Defendants assert that the claim accrued on January 20, 2017 and that plaintiff was required to commence the subject action by January 20, 2020. Plaintiff commenced this action on November 18, 2021 – 1 year, 9 months, and 29 days after the statute of limitations expired. Additionally, even if this cause of action accrued following plaintiff’s counsel’s relief from representation on June 6, 2017 and even considering the ensuing 30-day stay, plaintiff’s claim is still untimely.”
“The Court notes that on March 20, 2020, Governor Andrew M. Cuomo issued Executive
Order (EO) No. 202.8, which tolled the statute of limitations on civil cases due to the COVID-19 pandemic. 1 This EO was extended until November 3, 2020.2 Regarding plaintiffs first cause of action, as discussed above, defendants correctly assert (and plaintiff has not objected) that the statute of limitations expired on January 20, 2020. This was before the EO was issued and, therefore, stands as the proper date of expiration of this claim. Even if the Court were to consider the accrual date to be July 6, 2017, after the 30-day stay, the statute of limitations would have expired on July 6, 2020 and plaintiff would have had slightly over three months to commence this action at the time the EO was issued. Therefore, the statute of limitations after the EO tolling period would have expired in February 2021, and given that the complaint was filed on November 18, 2021, it was still untimely.
Regarding plaintiffs second cause of action, again, the date of expiration of the statute of limitations was June 23, 2020. This fell during the EO’s tolling period. When the EO was put in place on March 20, 2020, plaintiff had approximately three months remaining to bring this claim before it would have expired on June 23, 2_020, but the tolling period moved the date of expiration to three months after the EO ended on November 3, 2020, or February 3, 2021. Plaintiff did not commence this action until November 18, 2021. Therefore, this claim is still untimely despite the EO tolling period.”