UPDATED – COVID-19 in New York: Essential Business, Law Firms, and State and Federal Courts

November 13, 2020

November 13, 2020 – UPDATE: Although it was serially extended over the past eight months, often on the day it was set to expire, Governor Cuomo’s Executive Order 202.72 confirmed that, as of November 4, 2020, the suspension that has tolled civil time limits since March 20, 2020 as set forth in EO 202.8, and subsequent EOs thereafter, has ended:

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the uniform court acts, or by any statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby no longer in effect as of November 4, 2020, provided any criminal procedure law suspension remains in effect and provided that all suspensions of the Family Court Act remain in effect until November 18, 2020 and thereafter continue to remain in effect for those juvenile delinquency matters not involving a detained youth and for those child neglect proceedings not involving foster care.

The expiration of the toll on statutes of limitations and the resumption of Jury Duty, Grand Jury proceedings, and Jury trials, are encouraging signs of the progress being made to incrementally re-open and increase Court operations. Like their State Court counterparts, Federal and Bankruptcy Courts are also open for business, with restrictions in place to safeguard lawyers, litigants and Court staff. The adoption of virtual proceedings to advance, conference, settle, and try cases during the pandemic will serve as an enduring reminder of how our court systems once again persevered and adapted in the face of adversity.

This article will no longer be maintained. It is intended as a general overview and discussion on the subject matters it addresses. It is for informational purposes only and does not constitute legal advice or establish an attorney-client relationship. It is not intended to be, and should not be used as, a substitute for taking legal advice in any particular situation.

July 16, 2020 – UPDATE: On July 6th, Governor Cuomo signed Executive Order 202.48. In addition to several other provisions addressing the COVID-19 outbreak, EO 202.48 extends the provisions tolling the Statute of Limitations through August 5, 2020. As New York continues its recovery from the COVID-19 pandemic, Chief Judge Janet DiFiore announced during her weekly update that as of July 10, 2020, all of our State courts outside New York City have entered into Phase 4, tracking the State’s economic reopening plan. She also announced that on July 8, 2020, courts in New York City entered Phase 3, expanding the number of matters that may be heard in-person. Judges, however, will continue their use of virtual proceedings whenever legally permissible and logistically possible.

June 19, 2020 – UPDATE: On June 6, 2020, Governor Andrew M. Cuomo issued Executive Order 202.38, which extends, among the things, until July 6, 2020, his prior executive order that temporarily tolls “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 criminal procedure law, 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 other statute, local law, ordinance, order, rule, or regulation, or part thereof.”

Chief Judge DiFiore announced in her weekly address to the Bar that as of June 10th, judges and designated staff returned to their assigned courthouses in the five boroughs of New York City after the City met the safety benchmarks for Phase 1 of reopening. According to Chief Judge DiFiore, the vast majority of court business is being conducted virtually to minimize courthouse traffic, and usage of courthouse areas is limited to judges’ chambers, clerks’ offices and back offices.

She also announced that as of last week, the 3rd, 9th and 10th Judicial Districts moved into Phase 2 of return to in‐person operations, and that on Wednesday, June 17, courts in the 5th, 6th and 7th Judicial Districts will begin hearing an expanded number of in‐person matters.

May 21, 2020 – UPDATE: Access to the US federal courthouses in New York is still heavily restricted and will likely remain so until at least mid-summer. Nonetheless, the SDNY is preparing to re-open its courthouses in phases. Some in-person non-jury proceedings will be allowed during phase 2. These proceedings will initially be held in the district’s larger courtrooms, newly equipped with plexiglass barriers and other social distancing measures, and with attendance likely limited to the litigants. The Second Circuit continues to conduct appellate oral arguments by telephone. Last week, Montgomery McCracken’s Eugene J. O’Connor presented oral argument to the court of appeals in MSC FLAMINIA.

New York State Governor Cuomo extended by executive order the tolling of “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” through June 6, 2020.

Meanwhile, the New York state courts are continuing to adapt to virtual proceedings and prepare for courthouse re-openings. On Monday, May 25, 2020, state courts in the five New York City counties and the Long Island counties of Nassau and Suffolk, along with Dutchess, Orange, Putnam, Rockland, Sullivan, UIster and Westchester counties will begin accepting newly filed “nonessential” matters. Limited in-person courthouse operations have already begun in the 35 counties making up the Finger Lakes, Mohawk Valley, Southern Tier regions, the North Country and Central New York, where new case filings are already being accepted electronically.

Chief Judge Difiore cautioned that these steps are far from business as usual and that the serious public health threat from Covid-19 remains. The “return to what we all recognize will be a ‘new normal’ . . . will be careful, and it will be incremental” with courthouse traffic limited in order to minimize the risk of community transmission, the continuing use of virtual technology to conduct as much court business as possible, the ongoing suspension of jury operations, and the implementation of new protocols and safety measures, including the mandatory use of face masks in all buildings, social distancing, and protective barriers. The resumption of in-person court operations throughout the state “will come at different times in different regions, based on the progress made to meet the applicable criteria involving new infections and hospitalizations, healthcare capacity and availability of testing and tracing.”

May 5, 2020 – UPDATE: On May 1, 2020, Chief Administrative Judge Lawrence K. Marks issued Administrative Order AO/87/20, providing for the further expansion of virtual court operations, effective Monday, May 4, 2020, as follows:

In pending matters (both essential and non-essential), courts will:

accept filings of new motions and applications, and additional filings in pending motions;
accept filings of stipulations of all kinds, notes of issue, and notices of appeal;
refer matters to alternative dispute resolution before neutrals on court-established panels, community dispute resolution centers, and ADR-dedicated UCS court staff; and
conduct virtual court conferences in problem-solving courts with counsel, court staff, service providers, and, where practicable, clients.

Important: The existing prohibition on the filing of new, nonessential matters will continue.

As of May 4, 2020, the Unified Court System also implemented the Electronic Document Delivery System (EDDS), for delivery and filing of documents in place of paper filings in courts throughout the Unified Court System during the COVID-19 public health emergency.

The announcement noted the further expansion of virtual operations in the weeks to come.

April 14, 2020 – UPDATE: On April 7, 2020, New York Governor Andrew Cuomo signed Executive Order (“EO”) 202.14 to continue the modification and suspension of certain New York State laws relating to the COVID-19 disaster. In relevant part, EO 202.14 extends the provisions in EO 202.8, tolling statutes of limitations and other court deadlines until May 7, 2020. Furthermore, all NYS on Pause functions will be extended for an additional two weeks.

April 7, 2020 – UPDATE: On April 7, 2020, NY State Chief Administrative Judge Lawrence K. Marks published a memorandum praising the state courts for successfully transitioning to virtual court systems for handling “essential” matters. The filing of new “non-essential” matters is still prohibited. However, beginning April 13, 2020, the state courts will begin to transition to virtual court systems for some pending non-essential matters. Accordingly, Judges have been asked to review their case inventories and (1) identify pending non-essential matters in which court conference might help advance progress and (2) identify pending non-essential matters with fully briefed motions that might be ripe for decision.

March 25, 2020 – UPDATE: The states of New Jersey and Pennsylvania are also restricting non-essential business. However, “maritime transportation workers like port workers, mariners, equipment operators, and maintenance and repairmen are designated “essential.”

March 24, 2020 – Original Post: Greetings from New York, the “city that never sleeps”, where we are trying to maintain some sense of normalcy while keeping our social distance. It has not been easy. The coronavirus (COVID-19) pandemic has significantly impacted not only our daily lives, but also New York businesses, law firms, and courts. New York State Governor Andrew Cuomo issued a “New York State on PAUSE” executive order requiring all non-essential businesses to close their doors. The state and federal courts in New York also restricted their operations. We do not know when these mandates will end and when we might return to normal. Nevertheless, the New York lawyers at Montgomery McCracken remain ready, willing, and able to help you at any time, day or night.

Essential Business in New York

Governor Cuomo issued a “New York State on PAUSE” executive order on Friday, March 20^th. The purpose of the order is to decelerate the outbreak by limiting close personal contact. Only “essential” businesses like some healthcare providers, transportation services, manufacturing facilities, and retail stores may keep their doors open for their employees and the public. Non-essential businesses like restaurants, auditoriums, and gymnasiums must close their doors, though restaurants may continue to operate for takeout and delivery.

Any business may request designation as an “essential” business. The New York State Department of Economic Development d/b/a Empire State Development will make that determination. For example, any business that is necessary to support an “essential” business may also be designated an “essential” business. Law firms like Montgomery McCracken are “essential” to the extent they necessarily support other essential businesses and, as will be explained further below, represent criminal defendants or other litigants seeking emergency relief. Montgomery McCracken can also help a business request an “essential” designation. Please see our colleagues alerts for more information:

State and Federal Courts in New York

State and federal courthouses in New York are restricting access (e.g., banning those who have been diagnosed with the virus or have been in close personal contact with others diagnosed with the virus) and otherwise remain open only for essential functions. For example, New York State Chief Administrative Judge Lawrence K. Marks restricted the state’s in-court operations to some criminal, family, housing, and emergency matters which, to the extent possible, are being conducted by teleconference and videoconference. By executive order dated March 20^th, Governor Cuomo tolled the statutes of limitation for civil matters from the date of the executive order until April 19^th. Consistent with the Governor’s executive order suspending statutes of limitation in legal matters, the Chief Administrative Judge has directed that until further order, no papers shall be accepted for filing by a county clerk or a court in any matter of a type not included on the list of essential matters. This directive applies to both paper and electronic filings.

Federal courthouses in New York, like the United States District Courts for the Southern and Eastern Districts of New York as well as the United States Bankruptcy Court for the Southern District of New York, are restricting access and otherwise remain open only for essential functions. For example, federal courts are generally limiting in-court appearances to some criminal and emergency matters which, to the extent possible, are being conducted by teleconference and videoconference. Those federal courts are continuing to accept electronically filed pleadings in civil matters as usual. Notably, many district judges and bankruptcy judges have amended their individual practices and rules to adjust to these changes. The United States Court of Appeals for the Second Circuit is continuing to accept electronically filed pleadings. However, as of March 23^rd, it is conducting oral arguments only by telephone.

Montgomery McCracken in New York

We do not know when or under what circumstances New York—our home—might return to normal. Circumstances keep changing. Estimates range from weeks to months. Montgomery McCracken’s New York lawyers are settling into our new “work from home” routines and hoping for the best. Montgomery McCracken’s COVID-19 Resource Center is available here. We remain ready, willing, and able to help you at any time, day or night.

Montgomery McCracken attorneys are available to assist clients with numerous issues related to COVID-19. Montgomery McCracken’s COVID-19 Resource Center is available here.

Robert E. O’Connor

UPDATED – COVID-19 in New York: Essential Business, Law Firms, and State and Federal Courts

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