Public Health Risks of Expiration of Tolling Provisions in Executive Order 202.67
October 28, 2020
The Honorable Andrew M. Cuomo
Governor of New York State
New York State Executive Chamber
NY State Capitol Building
Albany, New York 12224
Via facsimile: (518) 474-1513
Re: Public Health Risks of Expiration of Tolling Provisions in Executive Order 202.67
Dear Governor Cuomo:
The resurgence of COVID-19 hotspots underscores the urgent need to extend the tolling provisions in Executive Order 202.67 that will expire on November 4. With the expiration looming, New Yorkers being sued by debt collectors—including those who live in hotspots or Red/Orange Zones—have no choice but to leave their homes and neighborhoods, often by public transportation, to obtain and notarize documents, make copies, visit post offices, and file papers in person in New York’s courthouses. The health risks, of course, are not limited to those being sued and their households; the risks extend to all of the essential workers and New Yorkers they encounter along the way.
The issue is not theoretical. We, the lawyers who provide free services to low-income New Yorkers defending debt collection actions, are only able to represent a miniscule fraction of New Yorkers who need our services.1 Our next line of defense is to provide limited-scope assistance, advising pro se litigants on how to best defend themselves. We have already encountered unrepresented defendants who live in Red Zones and are being sued by creditors in New York City Civil Court. We are forced to advise those litigants that they can either meet the onerous, and now potentially life-threatening, requirements of service, notarization, and court filing or risk defaulting in a civil lawsuit and face enforcement of a judgment during the pandemic.
If tolling provisions expire, we expect thousands more debt collection actions to be filed in New York City. Indeed, creditors have already started mass filings. Each has the potential to compel a New Yorker—most likely a New Yorker whose community is disparately impacted by coronavirus—to leave home and make multiple stops before landing in the clerk’s office of a courthouse to hand over documents to court staff.
Electronic filing of court documents is not the silver bullet to this problem. The Court’s Electronic Document Delivery System (EDDS) has limited capabilities. For example, it does not accept answers to summons and complaints. Further, EDDS has serious backlogs. Users are currently waiting for months for confirmation that the courts have accepted uploaded documents. And litigants must have the capability to draft, notarize, scan, and upload documents. Some pro se litigants receive help uploading documents from legal services providers, but use of the system requires some technological capability and many consumers do not even have email addresses. As you well know, since the pandemic hit NYC, the digital divide is a reality that has disparately impacted communities that are already marginalized. Those same individuals and families will not have the option of even attempting electronic filing.
In sum, the decision to end tolling cannot be reconciled with public health objectives, including those driving the “cluster action initiative.” We urge you to extend the tolling provisions until the end of the State Disaster Emergency. We further urge that the Executive Order clarify the effect of the tolling provisions on all time frames in the New York Civil Practice Law and Rules, including for actions filed before and after the initial order in March. There is already confusion and inconsistent application of those provisions.
For example, the Appellate Term of the Supreme Court of New York dismissed as untimely a Notice of Appeal for which the filing deadline was in July. The attorney was not even able to access the court file at that time. In another instance, a creditor rejected a defendant’s Answer in a consumer credit action as untimely. Without clarification, inconsistent application and extensive litigation will ensue. Finally, we recommend measures be considered when the tolling provisions expire to provide unrepresented litigants with the additional time they need to navigate civil legal processes in order to avoid a surge of filings and to ensure a more orderly resumption of court operations.
We welcome an opportunity to discuss the critical challenges affecting low-income New Yorkers being sued by debt collectors. You can reach us by contacting Karuna B. Patel, Deputy Director of Fordham Law School’s Feerick Center for Social Justice, at firstname.lastname@example.org.
Thank you for your consideration.
Professor John D. Feerick, Founder and Senior Counsel
Dora Galacatos, Executive Director
Karuna B. Patel, Deputy Director
Fordham Law School Feerick Center for Social Justice
Hamra Ahmad, Legal Director, Her Justice
Paulette Campbell, CLARO Managing Attorney Western New York Law Center
Sidney Cherubin, Director of Legal Services, Brooklyn Bar Association Volunteer Lawyers Project
Carolyn E. Coffey, Director of Litigation for Economic Justice Mobization for Justice
Tashi Lhewa, Supervising Attorney, The Legal Aid Society
Anne Nacinovich, Bronx Legal Services
Matthew Schedler, Supervising Attorney, CAMBA Legal Services, Inc.
Daphne Schlick, Director, Consumer Protection Unit New York Legal Assistance Group (NYLAG)
Susan Shin, Legal Director, New Economy Project
Professor Marcella Silverman, Lincoln Square Legal Services, Inc. at Fordham Law School
Tedmund Wan, Staff Attorney, Consumer Justice, TakeRoot Justice
Mark Weliky, Executive Director, Queens County Bar Association Volunteer Lawyers Project
William Whalen, Director, DC 37 Municipal Employees Legal Services
Claudia Wilner, Co-Director of Litigation and Advocacy National Center for Law and Economic Justice
cc: Hon. Lawrence K. Marks, Chief Administrative Judge of the Courts of New York State
Hon. Andrea Stewart-Cousins, Temporary President and Majority Leader, New York State Senate
Hon. Carl E. Heastie, Speaker, New York State Assembly
Hon. Michael G. DenDekker, Chair, Committee on Consumer Affairs and Protection, New York State Assembly
Hon. Jeffrey Dinowitz, Chair, Committee on Judiciary, New York State Assembly
Hon. Richard Gottfried, Chair, Committee on Health, New York State Assembly
Hon. Brad Hoylman, Chair, Committee on Judiciary, New York State Senate
Letitia James, Attorney General for the State of New York
Hon. Gustavo Rivera, Chair, Committee on Health, New York State Senate
Hon. Kevin Thomas, Chair, Committee on Consumer Protection, New York State Senate
Hon. Helene Weinstein, Chair, Committee on Ways and Means, New York State Assembly
Jumaane Williams, New York City Public Advocate
Dr. Howard A. Zucker, Commissioner, New York State Department of Health
1 In 2018 and 2019, over 100,000 consumer debt collection actions were filed in New York City Civil Court; over 96% of defendants in those cases filed a pro se answer in 2018, the most recent data available.