New York state courts permit new filings in "non-essential" matters on May 4, 2020

What you need to know:

• Effective May 4, 2020, restrictions on filing pleadings, motion papers, and notices of appeal in pending New York state court cases are lifted.
• New York continues to prohibit new case filings, and to limit in-person court activities.
• The statute of limitations on any New York cause of action remains tolled until May 7, 2020.  

1.  New York state courts lift restrictions on filings in “non-essential” matters

On March 20, 2020, Governor Andrew M. Cuomo issued Executive Order No. 202.8, which, among other things, tolled statutes of limitations for any New York cause of action until April 19, 2020.  Governor Cuomo later extended his tolling order until May 7, 2020.  Chief Administrative Judge Lawrence K. Marks followed Governor Cuomo’s March 20, 2020 Executive Order by issuing an Administrative Order on March 22, 2020 (AO/78/20) directing that “effective immediately … no papers shall be accepted for filing by a county clerk or a court in any matter of a type,” with limited enumerated exceptions.  The order covers “both paper and electronic filings.”

The “Essential Proceedings” excepted from AO/78/20 include (i) certain criminal matters; (ii) certain family court submissions; (iii) in the Supreme Court, Mental Hygiene Law and guardianship matters, temporary orders of protection, emergency applications related to the coronavirus (COVID-19) pandemic and Election Law, and extreme risk protection orders; and (iv) civil/housing matters.  The Order includes a catchall exception for “any other matter that the court deems essential” and notes that the “list of essential proceedings is subject to ongoing review and amendment as necessary.”

As a practical matter, for cases deemed “non-essential” this has meant that pleadings (whether new case filings or responsive pleadings), motion papers, notices of appeal, and any other requests for judicial intervention have not been permitted. 

On April 30, 2020, Judge Marks announced that electronic filings in pending “non-essential” cases may resume on May 4, 2020.  In his April 30, 2020 memorandum to all trial court justices and judges (available here), Judge Marks announced the following:

• New motions, responsive papers to pending motions, and other applications (including post-judgment applications) may be filed electronically in pending cases;
• Problem-solving courts – i.e., drug and mental health courts, and community courts − may conduct virtual court conferences with counsel, court staff, and service providers;
• Judges may resume referral of matters for alternative dispute resolution; and
• Notices of appeal may be filed electronically.

The prohibition on filing new cases in non-essential matters remains in force.

2.  New York state expands virtual court access to resolve disputes

Since March 13, 2020, most in-court activities have been prohibited, such as civil jury trials, compliance conferences, and oral argument.  Effective April 13, 2020, Judge Marks expanded virtual court operations to help resolve pending matters through telephone and video conferences.  This Order authorizes judges to conduct virtual conferences to resolve disputed issues and cases in their entirety, to address fully submitted motions, and to conduct ad hoc conferences during business hours on emergent disputes.  As a practical result, Judge Marks’ Order has permitted compliance conferences in civil cases to proceed virtually, and allows parties to address discovery disputes.

Questions and issues

The continued restrictions on the availability of the New York state courts raise a number of questions and considerations for litigants and attorneys, including the following:

• While the ban on new non-essential cases remains in force, if a party seeks emergency relief in connection with commercial issues, then a party likely may need to file in federal court or in a state court outside New York.
• When and how in-person court appearances and jury trials will resume remains an open question. 
• What constitutes a coronavirus-related emergency for purposes of qualifying as an “Essential Proceeding” under AO/78/20 in New York state court?
• What will the unavailability of the New York state forum mean for forum-selection clauses designating New York state court as the exclusive jurisdiction?
• While Governor Cuomo has tolled statutes of limitation for New York causes of action, what happens for non-New York causes of action that parties have agreed to litigate exclusively in the state courts of New York?

We are continuing to monitor developments impacting the court systems in New York and will be providing regular updates as the situation evolves over the coming days and weeks.

If you have any questions regarding these new requirements and their implications, please contact your DLA Piper relationship attorney or any member of the DLA Piper Litigation group.

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This information does not, and is not intended to, constitute legal advice. All information, content, and materials are for general informational purposes only. No reader should act, or refrain from acting, with respect to any particular legal matter on the basis of this information without first seeking legal advice from counsel in the relevant jurisdiction.