Perri and Van Dusen Win Pre-Answer Motion to Dismiss in Federal Court on Expired Statute of Limitations Despite COVID-19 Executive Tolling and Extension Orders
On October 8, 2020, Plaintiff purchased a coffee drink at a Queens, New York Starbucks which allegedly contained foreign objects which he ingested that caused him personal injuries. Plaintiff timely sued defendant Starbucks. Without application of any COVID-19 Executive tolling and/or extension orders, Plaintiff’s standard three-year negligence and products liability statute of limitations expired on October 8, 2023, three years after the alleged ingestion. On January 29, 2024, Starbucks impleaded iSi North America and iSi Culinary GmBH (“iSi Defendants”) as third-party defendants on a theory of contractual indemnity. On February 12, 2024, Plaintiff filed an Amended Complaint against Starbucks and the iSi Defendants. On behalf of the iSi Defendants, we filed a Rule 12(b)(6) Pre-Answer Motion to Dismiss before District Judge Rachel P. Kovner of the United States District Court for the Eastern District of New York (Brooklyn). The Motion was predicated upon the fact that despite the COVID-19 Executive tolling and extension orders the Amended Complaint was time barred as the extended statute of limitations expired on November 3, 2023 and was only extended twenty-six days. Plaintiff argued the tolling provided him an extra 228 days to file suit.
On October 8, 2024, Judge Kovner issued a Memorandum and Order relying upon Second Department and Third Department case law and ruled that Plaintiff’s theory did not comport with the prevailing authority. The Court held “a toll does not extend a statute of limitations—it merely suspends the running of the statute of limitations for the period of the toll.” As such, the statute of limitations on plaintiff’s claims expired three years after the end of the toll such that the Amended Complaint was dismissed.
Carl M. Perri
Matthew J. Van Dusen