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Joshua Schlenger

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Joshua Schlenger is special counsel in the Business Trial Practice Group in the firm's New York office.

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Does the business harm caused by COVID-19 qualify as “direct physical loss” for insurance purposes? In Spirit Airlines, Inc. v. American Home Assurance Company, Index No. 655755/2021, Commercial Division Justice Robert R. Reed held that the answer is no. In a decision announced on the record at an August 18, 2022 oral argument and entered on September 13, 2022 (see here), Justice Reed explained that his decision was dictated by the First Department’s April 7, 2022 decision in Consolidated Restaurant Operations, Inc. v. Westport Insurance Corp., 205 A.D.3d 76 (1st Dep’t 2022), and that he “follow[s] the First Department until the Court of Appeals says that the First Department is wrong.”…

Continue Reading The Commercial Division Rejects Yet Another Insured’s Claim for Coverage for Covid-Related Revenues Losses

In “Governor Cuomo’s “Tolling” of New York Statutes of Limitation Has Ended, But What Did It Accomplish?”, we examined the debate surrounding whether Governor Cuomo’s Executive Order No. 202.8 and subsequent orders up to and including Executive Order No. 202.67, which extended Executive Order No. 202.8 (collectively, the “Executive Orders”), actually tolled New York statutes of limitation and other litigation deadlines for the period of March 20, 2020 through November 3, 2020, or merely suspended them.  For purposes of determining whether a claim or an appeal was timely filed, the answer to this question can have huge implications.  If the Executive Orders merely accomplished a suspension, then any claim or filing deadline that would have otherwise lapsed during the period of March 20, 2020 through November 3, 2020 would need to have been filed no later than November 4, 2020—the day after the suspension period ended.  On the other hand, if the effect of the Executive Orders was a true tolling of the statutes of limitation and other court deadlines, then any time that remained on the limitations period as of March 20, 2020 would be added back (and start to run again) once the limitations period resumed on November 4, 2020.
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Continue Reading The Second Department Weighs in on Tolling vs. Suspension of Statutes of Limitation Pursuant to Governor Cuomo’s COVID-era Executive Orders

Statutes of limitation were “tolled” in New York by Executive Order No. 202.8, issued by Governor Andrew M. Cuomo on March 20, 2020 in response to the COVID-19 pandemic.  Over the next six-and-a-half months, that toll was renewed by further executive order every 30 days until, on October 4, 2020, the Governor issued Executive Order No. 202.67, announcing that the tolling order would be extended for only one more 30-day period—“until November 3, 2020, and after such date [statutes of limitation] will no longer be tolled.” …
Continue Reading Governor Cuomo’s “Tolling” of New York Statutes of Limitation Has Ended, But What Did It Accomplish?