Earlier today, Governor Andrew Cuomo signed Executive Order 202.14 (EO 202.14), the latest in a series of executive orders that are part of the governor's COVID-19 emergency declaration (also known as "New York State on PAUSE"). Before EO 202.14, Governor Cuomo issued a series of executive orders that, among other things, required all non-essential businesses to reduce their in-person workforce by 100%, tolled all statutes of limitations and other statutory filing deadlines until April 18, 2020, and permitted virtual notarization of documents. We covered those executive orders here and also in our COVID-19 Updates for New York Lawyers post. Here's how EO 202.14 impacts the legal profession:
Extending Earlier Executive Orders
EO 202.14 extends certain time periods that were set to expire in early April under previous executive orders, namely EO 202.8 and 202.7. Specifically, EO 202.14 modifies the following deadlines:
- Extends the time for all non-essential businesses to maintain 100% remote operations until April 29, 2020. Whether a law firm qualifies as an "essential" business depends on the facts and circumstances, however, the Empire State Development Corporation (which the executive orders tasked with determining "essential" services) took the position that law firms may qualify under certain circumstances. We covered that in more detail here.
- Further tolls all statutes of limitations and other statutory deadlines for serving and filing of papers until May 7, 2020. EO 202.8 previously tolled these deadlines until April 18, 2020. Although EO 202.14 does not specifically address statutes of limitations or other statutory deadlines, the order states that the governor is "continu[ing] the suspensions and modifications of law" made by earlier executive orders (and not superseded by a subsequent order) until May 7, 2020, which would include the tolling of statutes of limitations and other statutory deadlines for filing and serving of papers under EO 202.8.
- Continuing suspension of in-person shareholder meeting requirement. EO 202.14 continued the suspension of the requirement in New York's Business Corporation Law that shareholder meetings be noticed and held at a physical location. Any shareholder meeting that was previously required to occur in-person can proceed remotely until May 7, 2020.
- Virtual Notarization permitted through May 7, 2020. In EO 202.7, the governor ordered that notarization of documents could proceed via audio-visual technology provided certain conditions were met. These conditions included that the individual seeking to have a document notarized provide sufficient proof of identification in a videoconference and that the individual affirmatively represent that he or she is physically situated in the state of New York. EO 202.14 extends virtual notarization through May 7, 2020.
Permitting Remote Witnessing of Written Instruments
New York law requires certain documents such as wills, powers of attorney, and healthcare proxy forms be signed before witnesses. EO 202.14 provides that these documents can be witnessed via audio-video technology provided the following conditions are met:
- The person requesting that their signature be witnessed, if not personally known to the witness(es), must present valid photo ID to the witness(es) during the video conference, not merely transmit it prior to or after;
- The video conference must allow for direct interaction between the person and the witness(es), and the supervising attorney, if applicable (e.g. no pre-recorded videos of the person signing);
- The witness(es) must receive a legible copy of the signature page(s), which may be transmitted via fax or electronic means, on the same date that the pages are signed by the person;
- The witness(es) may sign the transmitted copy of the signature page(s) and transmit the same back to the person; and
- The witness(es) may repeat the witnessing of the original signature page(s) as of the date of execution provided the witness(es) receive such original signature pages together with the electronically witnessed copies within thirty days after the date of execution.
EO 202.14 is not likely to be the last executive order that will impact the day-to-day operations of lawyers and law firms. We will continue to monitor the situation and for the most recent updates, please be sure to subscribe to this blog and check back regularly.