Legal Ethics and Professional Responsibility Alerts

March 22nd, 2020

A Primer On New York’s COVID-19 Executive Orders and What They Mean for Your Practice

This past week, New York has taken a number of steps to restrict movement in and around the State in an effort to contain the COVID-19 crisis. Governor Andrew Cuomo has issued executive orders and the chief judges of the state and federal courts have issued administrative orders that have had a sweeping impact on the legal industry as well as the business community at large. We are closely monitoring any developments in this area but, for now, here’s what you need to know:

Executive Order Regarding Non-Essential Business Activities

On Friday, March 20, 2020, Governor Andrew Cuomo announced the “New York State on PAUSE” Executive Order. (E.O. 202.8). E.O. 202.8 states that as of 8:00 p.m. on March 22, 2020, all “non-essential” businesses in New York State must reduce in-person workforces by 100% and utilize, to the maximum extent possible, any telecommuting or work from home procedures to continue operations. In addition, any businesses providing “essential” services are required to implement social distancing measures. Although the order does not define “essential services,” an earlier executive order (E.O. 202.6) tasked the New York State Department of Economic Development (d/b/a Empire State Development) with defining which businesses qualified as “essential.” In addition to medical care, infrastructure, and food retail, the following are also considered “essential” services in New York:

  • Banks, insurance, accounting and services related financial institutions;
  • News media;
  • Restaurants (only for take-out or delivery);
  • Hotels and places of accommodation;
  • Mail and shipping services;
  • Providers of basic necessities to economically disadvantaged populations; and
  • Vendors that provide essential services or products, including logistics and technology support, and child care services.

It does not appear that law firms or legal service providers are considered “essential” businesses. This does not mean that law firms must stop operations, however, it does mean that unless a firm or legal service provider otherwise qualifies as “essential,” it must reduce its in-person workforce by 100% and utilize remote working conditions. The Department of Economic Development allows businesses that are not otherwise listed as “essential” to request a special designation in order to maintain in-person operations. Any lawyer or law firm that believes their practice should qualify as “essential” should promptly seek guidance from the Department of Economic Development. Otherwise, lawyers should make sure they have the tools they need to run their practice remotely for the foreseeable future.

Executive Orders Suspending Statutes of Limitations and Allowing Virtual Notarization 

Governor Cuomo also signed executive orders that temporarily changed New York’s procedural laws to account for the in-person workforce reductions throughout the State. These changes include: 

  • Suspending all statutes of limitations. E.O. 202.8 tolls all statutes of limitations contained in New York’s civil and criminal procedural laws from March 20, 2020 until April 19, 2020. Absent a new executive order, statutes of limitations will begin to run again after that time period. 
  • Shareholder Meetings. E.O. 202.8 suspends until April 19, 2020 the requirement in New York’s Business Corporation Law that shareholder meetings be noticed and held at a physical location.
  • Virtual Notarization. E.O. 202.7 provides that until April 18, 2020, any notarization required under New York law may be performed via audio-visual technology provided certain conditions are met, including that the individual seeking to have a document notarized provide sufficient proof of identification in a videoconference and that the individual affirmatively represent that he or she is physically situated in the state of New York.

In light of these temporary changes in the law, lawyers should make sure they are on top of upcoming deadlines in both litigation and transactional matters and should plan accordingly.

Court Closings and Administrative Orders

In addition to the executive orders, courts throughout the state have suspended or adjourned non-essential matters and have largely cancelled in-person appearances. For instance, the four Appellate Divisions have issued orders suspending indefinitely the deadlines to perfect appeals, except that the First Department’s order does not apply to matters that were perfected for the May 2020 or June 2020 terms. These orders also apply to any pending motions, which include attorney grievance matters. Similarly, the New York County Supreme Court has adjourned all non-essential matters, cancelled all oral arguments and postponed jury selection for all civil trials. The courts remain open for emergency applications with limited staff.

The U.S. District Courts for the Southern and Eastern Districts of New York remain open but have restricted operations to essential activities. Any decisions regarding appearances in a federal matter and upcoming deadlines are reserved to the judge presiding over the case. In addition, lawyers may need to make individual applications to appear by telephone, depending on the rules of the presiding judge.

If lawyers are unsure how these administrative orders apply to their cases in either state or federal court, they should consult the judge’s individual rules and also consider seeking guidance from the court. Clients should also be promptly notified of these developments, especially if the client is planning to attend an upcoming court appearance.

Conclusion

Lawyers and law firms should pay close attention to these temporary changes in the law and should consider the impact these developments will have on their practice both in the short term and the long term. We will continue to monitor any developments and if something changes we will let you know. In the meantime, stay safe and if you have any questions about how these changes might impact your practice or steps you should take during this uncertain time, please contact Ronald Minkoff, John Harris, Nicole Hyland, or Tyler Maulsby.