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An Overview of Tolls To Statutes of Limitations On Account of War: Are They Current and Relevant in the Post-September 11th Era?

Hon. Mark C. Dillon, Fordham Law School (Adjunct)

Abstract

The devastation of the attacks that occurred at the World Trade Center on September 11, 2001 included costly disruption to the operation of courts in the City and State of New York. A court facility at Five World Trade Center was destroyed. Attorneys were among the 2,752 persons killed in the event. Law offices were destroyed. Key litigation witnesses and documents were lost forever. Thousands of attorneys were unable to access their work for days. State courts in Manhattan did not reopen for business until September 17, 2001. Amidst the turmoil and confusion, there was a defined set of potential plaintiffs facing the imminent expiration of their statutes of limitations, who faced the inability to commence legal proceedings because courts were closed, or their attorneys were killed, or their attorneys' law offices and key documents were destroyed. The loss of life and property occasioned by the attacks on 9-11 portrayed an outward appearance of war, as if the World Trade Towers had collapsed as a result of conventional bombs or missiles rather than from the impacts of planes loaded with jet fuel. Yet, with legal hindsight, New York's toll of its statute of limitations for war (N.Y. CPLR 209), and the parallel war toll provisions of other states, afford no protection to plaintiffs who are unable to commence timely actions in the courts as a result of significant acts of terrorism. Relief that such plaintiff's received after 9-11 was instead in the form of a 58-day suspension of the statutes of limitations issued by then-Governor George Pataki pursuant to Executive Order under his "state of emergency" authority, as defined by New York Executive Law 29-a.

This article examines the war toll statutes of all states that have them, the decisional authorities of states that are without statutory war toll provisions, related federal statutes and case law, and the executive authority of governors to act during defined states of emergency. The article describes how plaintiffs who may be disabled from timely commencing future litigations on account of disruptive acts of terrorism can derive no solace from statutory war toll provisions, which uniformly define "war" as a conflict between the United States and another "country," as distinguished from conflicts with private organizations such as al Qaeda. Surprisingly, and by morbid coincidence, New York was the only state on September 11, 2001 that unambiguously vested its governor with separate executive authority to suspend statutes of limitations during declared disaster emergencies. Texas has since followed. However, in the remaining 48 states and in the District of Columbia, plaintiffs who may be foreclosed from commencing legal proceedings as a result of future significant terrorist-related events, facing the closure of courts, the death of attorneys, or the destruction of law offices and documents, do not appear to be currently or adequately protected by the law. State governors, legislatures, and bar associations throughout the country should consider the enactment of executive mechanisms, similar to those already on the books in New York and Texas, for extending statutes of limitations in response to significant future acts of terrorism.

Suggested Citation

Hon. Mark C. Dillon. 2009. "An Overview of Tolls To Statutes of Limitations On Account of War: Are They Current and Relevant in the Post-September 11th Era?" ExpressO
Available at: http://works.bepress.com/hon_mark_dillon/2

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