How Governor Cuomo’s Executive Order Affects Your Case

Governor Cuomo signed an Executive Order on March 20, 2020 suspending New York State laws that are in place to protect your constitutional rights, including speedy trial, grand jury presentations, and statute of limitations – how does this affect your case?

On March 20, 2020, Governor Cuomo signed Executive Order No. 202.8, which suspends filing periods, statutory time requirements, service of any lawsuit, motion, or “other process or proceeding” until April 19, 2020 due to the coronavirus outbreak. This order includes all provisions of the New York State Criminal Procedure Law, Family Court Act and Civil Practice Law and Rules. The executive order can be found here:

This unprecedented Order has a profound effect on every new and pending criminal and civil case in New York State. The laws that are now suspended were enacted to ensure fair treatment to both criminal defendants and civil litigants. While this was done to protect the society at large during the COVID-19 outbreak, this can be a tough pill to swallow when it affects your case and individual liberty. You might be wondering what exactly can be done to protect your constitutional rights during this difficult time.

New and Pending Criminal Cases

In criminal cases, Governor Cuomo’s Order impacts your ability to defend yourself against the accusations levied against you by the Government. In felony cases, prosecutors are no longer required to abide by C.P.L. § 180.80, which requires your case be presented to a grand jury within six days of your arrest when bail is set. Typically, when the prosecutor cannot meet this strict deadline, you would be released and remain at liberty during the pendency of the criminal case. Instead, under this order, incarcerated individuals may be detained indefinitely, even on cases where the prosecutor would not have been able to present to a grand jury in six days, or at all. Moreover, prosecutors are no longer required to serve discovery within fifteen days of your arraignment as required under C.P.L. § 245.00 or abide by speedy trial time constraints, which require the prosecutor state ready for trial within ninety days of arraignment for Class “A” Misdemeanors and six months for felony offenses pursuant to C.P.L. § 30.30. Normally, if the prosecutor fails to state ready within the allotted timeframe, your case would be dismissed. However, while Governor Cuomo’s Order is in effect, this is no longer the case.

Therefore, it is critical for your attorney to examine and utilize all exceptions to the Executive Order to effectively advocate and enforce your constitutional rights. One such exception is that emergency applications will still be heard by a judge. For example, if someone incarcerated awaiting trial or serving a sentence is at risk of contracting coronavirus and considered a high-risk patient under the CDC and WHO guidelines, a writ of habeus corpus can be brought on your behalf seeking emergency release from prison. During these uncertain times, it is crucial to have an attorney on your side that is keeping abreast of the decisions being rendered daily and to critically examine your case to determine if an emergency application can be made to help you. Governor Cuomo’s Executive Order is the first time in New York State history that these laws have been suspended for such a long period of time, and your attorney must act diligently to protect your rights, which have temporarily been put on hold.

Here at Portale Randazzo, LLP, our attorneys are diligently collaborating and reviewing all of the decisions being rendered by judges throughout the country to develop an individualized plan for each client. This includes assessing whether a viable emergency application can be made to help you while the Executive Order is in place and your rights have been put on hold by the Governor. You can rest assured that we will explore every avenue to protect you and your loved ones during these uncertain times and will fight for your rights every step of the way. We are also available to consult with new clients to discuss defending your criminal case and whether an emergency application is a viable option for you.

New and Pending Civil Cases

In civil cases, the statute of limitations, which is the time period someone has to file a Summons and Complaint, has been suspended by Governor Cuomo’s Order. Depending on the type of case or procedure, New York’s statutes of limitations generally range from one to six years. The point at which the clock starts ticking is typically the date of the incident or discovery of a wrong. Additionally, time to file an Affidavit of Service for a Summons and Complaint (normally required within thirty days of filing), file an Answer to the Complaint (normally twenty or thirty days of the filing of the Affidavit of Service, depending on the method of service), and file or respond to summary judgement motions (normally within forty-five days after the Note of Issue is filed) have also been suspended.

This means that if you are planning to bring a lawsuit against someone, you will have additional time to file if the statute of limitations is close to expiring. Additionally, if you have been sued, you will have additional time to Answer or file a pre-answer motion to dismiss. If you believe you have a viable civil case or need to consult with an attorney if you have been sued, Governor Cuomo’s Order affords you additional time to speak to an attorney about your options. It is important to find an attorney that regularly practices civil litigation and can guide you through possible causes of action, defenses, and the impact the Executive Order may have on your case.

Here at Portale Randazzo, LLP, our experienced civil litigation attorneys are available to discuss your case with you, whether you are looking to sue someone or need to defend a lawsuit brought against you. Additionally, we will continue to litigate on behalf of our clients and are assessing each case to determine how we can best use the additional time allotted in Governor Cuomo’s Order to your benefit.

By: Kenneth M. Calvey, Esq.