In this action alleging personal injuries resulting from a motor vehicle collision, defendant New York City Transit Authority moves to dismiss the action as time-barred. The issue presented is whether the statute of limitations in this action was tolled by virtue of executive orders that Governor Cuomo issued in connection with Hurricane Sandy.

According to the notice of claim, on October 6, 2011, plaintiff was struck by a M4 bus, traveling eastbound on 32nd Street at or near its intersection with Fifth Avenue, which "suddenly and abruptly turned toward the bus stop without any [*2]warning," striking plaintiff. (Shufer Affirm., Ex A.) It is undisputed that plaintiff commenced this action on February 28, 2013.

Defendant New York City Transit Authority (NYCTA) moves to dismiss the action as time-barred, because plaintiff did not commence this action within the statute of limitations set forth in Public Authorities Law § 1212 (2). Plaintiff opposes the motion and maintains that the action was timely commenced, because plaintiff asserts that the statute of limitations was tolled by virtue of executive orders that Governor Cuomo issued in connection with Hurricane Sandy.

CPLR 201 provides,

"An action, including one brought in the name or for the benefit of the state, must be commenced within the time specified in this article unless a different time is prescribed by law or a shorter time is prescribed by written agreement. No court shall extend the time limited by law for the commencement of an action." (Emphasis supplied.)

However, as the NYCTA itself indicates, Public Authorities Law § 1212 (1) requires that the complaint "contain an allegation that at least thirty days have elapsed since the demand, claim or claims upon which such action is founded were presented to a member of the authority. . . ." Thus, "it has been held that the effect of such a statute is to extend the general period of limitation by an additional 30 days." (Barchet v New York City Tr. Auth., 20 NY2d 1, 5 [1967] see Serravillo v New York City Tr. Auth., 42 NY2d 918 [1977][statute of limitations tolled for duration of 30 day extension] Burgess v Long Is. R.R. Auth., 79 NY2d 777, 778 [1991]["This stay' of 30 days is not counted as part of the limitations period"].) Therefore, as NYCTA acknowledges (Shufer Affirm., ¶ 7) for the purposes of determining whether an action founded on tort against the NYCTA (except an action for wrongful death) is time-barred under Public Authorities Law § 1212 (2), the limitations period is effectively one year and 120 days, instead of one year and 90 days.

NYCTA has met its burden of demonstrating that the action is time-barred. Because plaintiff alleges that the incident occurred on October 6, 2011, plaintiff had up to February 3, 2013 (one year and 120 days after October 6, 2011) to commence [*3]this action.

Plaintiff argues that the statute of limitations was tolled by Executive Order No. 52, issued on October 31, 2012, which states, in pertinent part:

"I hereby temporarily suspend, for the period from the date of this Executive Order until further notice, the following laws:

Section 201 of the Civil Practice Law and Rules, so far as it bars actions whose limitation period concludes during the period commencing from the date that the disaster emergency was declared pursuant to Executive Order Number 47, issued on October 26, 2012, until further notice, and so far as it limits a court's authority to extend such time, whether or not the time to commence such an action is specified in Article 2 of the Civil Practice Law and Rules."

By its terms, Executive Order No. 52 suspended CPLR 201 for the period from October 31, 2012 until "further notice." Such further notice came in Executive Order No. 81, issued on November 20, 2012, which states, in pertinent part, "The suspension of provisions of law ordered by Executive Order Number 52 shall continue through December 25, 2012, except that the provision suspending Sections 30.10 and 30.30 of the Criminal Procedure Law shall not be continued." (9 NYCRR 8.81.) Thus, Governor Cuomo suspended CPLR 201 from October 31, 2012 through December 25, 2012.

Contrary to plaintiff's argument, Executive Order No. 52 was not a "blanket toll," in the sense that it suspended the running of all limitations periods. Executive Order No. 52 suspended CPLR 201 as to all actions, but only "so far as it bars actions whose limitation period concludes during the period commencing from the date that the disaster emergency was declared pursuant to Executive Order Number 47, issued on October 26, 2012, until further notice." That is, the toll applied only to those actions whose limitation period would have ended during the period from October 26, 2012 (when the disaster emergency was declared) through December 25, 2012 (as set forth in Executive Order No. 81).

Here, the limitations period in this action did not conclude within the period from October 26, 2012 through December 25, 2012. Thus, by its terms, Executive Order No. 52 does not apply to this action.

Scheja v Sosa (4 AD3d 410 [2d Dept 2004]) supports the conclusion that Executive Order No. 52 did not operate as a "blanket toll." In Scheja, the Appellate [*4]Division, Second Department addressed the tolling provisions of Executive Order Nos. 113 and 113.7, which declared a disaster in the wake of the terrorist attacks on September 11, 2001. Executive Order No. 113.7 suspended CPLR 201 "so far as it bars actions whose limitation period concludes during the period commencing from the date that the disaster emergency was declared pursuant to Executive Order Number 113, issued on September 11, 2001, until further notice." (9 NYCRR 5.113 et seq.)

The Appellate Division, Second Department rejected plaintiff's contention that he should receive the benefit of the tolling provisions. The Court reasoned,

"The plain meaning of these Executive Orders is that any litigant who was affected by the World Trade Center attacks and whose statute of limitations period expired between September 11, 2001 and November 8, 2001, was given a grace period of up until November 8, 2001, to satisfy the statute (see Randolph v. CIBC World Markets, 219 F Supp 2d 399, 401). The plaintiff urges an extraordinary interpretation of the Governor's Executive Orders as a tolling provision. According to his argument, any litigant who was affected by the disaster emergency could have their period of limitations tolled for the number of days from September 11, 2001, to November 8, 2001, no matter when the statute of limitations expired. This could not have been the intent of the Governor's Executive Orders. The state of emergency caused by the attacks on September 11, 2001, no longer existed at the time the plaintiff was required to commence his action in February 2002 and thus could not have interfered with his ability to meet the statute of limitations. Accordingly, the action should have been dismissed as time-barred insofar as asserted against the NYCTA."

Here, the wording of Executive Order No. 52 is similar to that of Executive Order No. 113.7, as it pertains to the suspension of CPLR 201. Therefore, Executive Order No. 52 should be construed similarly to Executive Order No. 113.7 as to the suspension of CPLR 201. Like the plaintiff in Scheja, the state of emergency no longer existed at the time that plaintiff in this case could have commenced this action, which was by February 3, 2013 at the latest. Thus, this Court rejects plaintiff's argument of a "blanket toll," i.e., that the period of limitations for every litigant who was affected by the disaster emergency was tolled for the number of days from October 26, 2012 through December 25, 2012, no matter when the statute of limitations expired. [*5]

In conclusion, the NYCTA's motion to dismiss the action as time-barred is granted.

Accordingly, it is hereby

ORDERED that the motion to dismiss the action by defendant New York City Transit Authority is granted, and the complaint is dismissed with costs and disbursements to defendant New York City Transit Authority as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.

Dated: March 24, 2014

New York, New York

ENTER:

/s/

Hon. Michael D. Stallman

J.S.C.