Beginning May 25, 2020, new nonessential actions can be filed electronically through the New York State Court Electronic Filing (NYSCEF) system, even in regions that have not begun phased reopening from “New York on PAUSE,” such as New York City, Long Island and the mid-Hudson Valley.
While motions for preliminary injunctions can be filed on notice in new and pending nonessential cases, litigants’ ability to apply for temporary restraining orders in such cases by order to show cause will depend on the part rules of the assigned judge.
New York statutes of limitation nonetheless remain tolled until June 6, 2020.

In our last alert, we noted that litigants had been banned from commencing new nonessential actions (including most commercial actions) in New York State courts since March 22, 2020. On that date, New York Chief Administrative Judge Lawrence K. Marks issued an administrative order (AO-78-20), prohibiting litigants from making any court filings (paper or electronic) in any non-essential matters, whether new or pending. While the Chief Administrative Judge loosened the restrictions on electronic filings in pending nonessential matters in Administrative Order 87-20, issued on May 1, 2020, the ban on the filing of new nonessential cases remained in place.

The ban on filing new nonessential actions was made possible by Governor Cuomo’s March 20, 2020 executive order (No. 202.8), which tolled “[a]ny specific time limit for the commencement, filing, or service of any legal action” until April 19, 2020; the Governor’s subsequent May 7, 2020 executive order (No. 202.28) further extended the tolling period until June 6, 2020. While these executive orders ensured that statutes of limitation would not run while the Chief Administrative Judge’s ban on non-essential filings was in effect, they were of no help to potential plaintiffs who needed to obtain interim pre-judgment relief, such as a preliminary injunction. To obtain such relief, potential plaintiffs needed to either make an application to the New York State Courts for their new actions to be considered “essential” (a high bar) or else try to file in federal or other states’ courts (which might not be possible—e.g., for lack of jurisdiction).

Within the past week, the New York State court system has entered a new phase of reopening. As part of this next phase, court personnel are returning to courthouses, resuming in-person operations, and accepting new nonessential case filings in more than 30 upstate counties that have met the Governor’s benchmarks to emerge from “New York on PAUSE” and enter Phase 1 reopening. Then, on May 20, the Chief Administrative Judge announced that electronic filing of new nonessential actions will resume on May 25, 2020 (Memorial Day) in all New York State counties, even those that are still under “PAUSE,” such as New York City, Long Island and the mid-Hudson Valley.

Upstate Courthouses Reopen

On May 13, 2020, the Chief Administrative Judge issued a press release announcing that, beginning the week of May 18, 2020, “New York State court system judges and chambers staff, along with designated clerks and support staff” would “return to their courthouses” in 30 upstate counties that, as of May 13th, had met the Governor’s benchmarks for Phase 1 reopening from “New York on PAUSE.” The press release also noted that “new cases may be filed in these counties electronically.”

The Chief Administrative Judge followed up this announcement with a formal administrative order on May 15, 2020 (AO-111-20) directing that, in those counties that met the Phase 1 reopening benchmarks (which, by May 15, had ballooned to 35 counties in the State’s Finger Lakes, Mohawk Valley, Southern Tier, and Central New York regions), “filings through the New York State Courts Electronic Filing System (NYSCEF), including the filing of new matters, shall be accepted by courts (including County Clerks as clerks of the court) in case types approved for electronic filing.” The administrative order further directed that parties effect service “by electronic means through NYSCEF, except that unrepresented parties may file, serve and be served in such matters by nonelectronic means.” In a press release issued on May 20, 2020, the Chief Administrative Judge announced that in-person courthouse operations would resume the next day in 13 counties in the Western New York and Capital regions.

As a New York State courts spokesman told Law360, however, the resumption of e-filing of new nonessential actions in upstate counties created the risk that potential plaintiffs and their attorneys in downstate counties (where e-filing of new nonessential actions remained prohibited) would file cases in small upstate counties rather than wait for their home counties to reopen. That fact prompted the Chief Administrative Judge to relax the ban on e-filing new nonessential actions in all counties of the State—even in hard-hit New York City, Long Island and the mid-Hudson Valley, which remain on “PAUSE.”

As of Monday, May 25, New Non-Essential Actions Can Be Commenced Electronically Statewide

On May 20, 2020, the Chief Administrative Judge issued a memorandum to all New York State Trial Court Justices and Judges announcing that, beginning May 25, 2020 (Memorial Day), commencement of new nonessential actions will be permitted electronically through the NYSCEF system even in the downstate counties that have not yet begun Phase 1 reopening:

Consistent with the goal of expanding court activity while maintaining appropriate standards of public health and safety, we will be taking another important operational step commencing Monday, May 25. Beginning that day, e-filing through the NYSCEF system—including the filing of new non-essential matters—will be restored in those counties of the state that have not yet met the benchmarks required to participate in the Governor’s regional reopening plan. Those counties include the five New York City counties, Nassau and Suffolk counties, and Dutchess, Orange, Putnam, Rockland, Sullivan, Ulster, and Westchester counties.

In recognition of the continued curtailment of in-court activities of court personnel and the public—and in contrast to the usual practice in consensual e-filing matters—this restoration of NYSCEF usage will be limited to cases in which represented parties file and serve all papers electronically. (Unrepresented litigants may continue to file, serve and be served papers through non-electronic means in those cases.)

(emphasis added). On May 22, 2020, the Chief Administrative Judge formalized this directive in Administrative Order 114/20, which provided that represented parties in the counties comprising New York City, Long Island, and the mid-Hudson regions may (and must) “commence new matters or proceed in pending matters exclusively by electronic filing through NYSCEF.”

Implications of the Chief Administrative Judge’s May 20 Memorandum

The Chief Administrative Judge’s May 20 memorandum and May 22 administrative order, together with prior administrative orders, represents an important step in reopening the New York State court system to potential plaintiffs. In just a few days, potential plaintiffs may once again commence new nonessential actions in any New York State county that uses the NYSCEF filing system, including New York City counties.

Not only that, but as a consequence of the Chief Administrative Judge’s May 1, 2020 administrative order (No. 87-20), plaintiffs will be able to not only commence new nonessential actions, but also thereafter proceed to make a motion or application for interim relief. Administrative Order No. 87-20 order provided that “[i]n pending matters, digital copies of . . . motions, cross motions, responses, replies and applications (including post-judgment applications) . . . shall be accepted for filing purposes by all courts and clerical officers of the Unified Court System (including County Clerks acting as clerks of court) when presented for filing through the . . . [NYSCEF] system . . . .” (AO-87-20 ¶ A) (emphasis added). The familiar process of commencing an action and then immediately moving on notice for a preliminary injunction that will bind the defendant for the duration of the lawsuit is therefore once again available statewide, albeit electronically.

Despite the Chief Administrative Judge’s permission for litigants to make “motions” and “applications” electronically, plaintiffs should proceed with caution when considering an application for a temporary restraining order (TRO). Applications for TROs are typically made by order to show cause. Prior to the pandemic, many courts required litigants to file their order to show cause papers electronically and then appear in person with hard copies of those papers at the courthouse—a procedure that is not possible in many counties now, where courthouses are either closed or operating with reduced personnel.

Litigants’ ability to move by order to show cause in the current environment will depend heavily on the part rules of the judge assigned to the case. For example, some New York State judges have promulgated temporary part rules, in light of the COVID-19 pandemic, that limit the types of orders to show cause that can be filed. Still others have directed litigants to e-file orders to show cause on NYSCEF and then e-mail those papers to new part e-mail addresses and await further instructions. The availability of a TRO will thus hinge on how the judge assigned to the case is currently handling orders to show cause.

Accordingly, while downstate courthouses may remain closed and statutes of limitations and other filing deadlines remain tolled until June 6, 2020, the New York State court system has taken the step of allowing potential plaintiffs to once again commence new nonessential actions and make motions for preliminary injunctions and (depending on individual judges’ rules) apply for temporary restraining orders electronically anywhere within the state where electronic filing is available.

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