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NYS Supreme Court judge rules against state mask mandate, Erie Co. mandate remains in place

Erie County Executive Mark Poloncarz's spokesperson said this ruling does NOT affect Erie County's mask mandate, which is still in effect.

NEW YORK — A State Supreme Court judge in Nassau County has ruled against Gov. Kathy Hochul's statewide mask mandate. This ruling does not affect the Erie County mandate and the State Education Department said schools must continue to follow masking rules.

On Monday, Judge Thomas Rademaker ruled that Hochul's executive order was unconstitutional as it bypassed the lawmaking powers of the legislature. 

"To be clear, this Court does not intend this decision in any way to question or otherwise opine on the efficacy, need, or requirement of masks as a means or tool in dealing with the COVID-19 virus. This Court decides only the issues of whether the subject rule was properly enacted and if so whether same can be enforced," Rademaker wrote in the ruling.

Rademaker continued to say the order is a law that was unlawfully enacted by an Executive branch state agency, "and therefore void and unenforceable as a matter of law."

Hochul plans on fighting the decision based on a statement her office released Monday night.

"My responsibility as Governor is to protect New Yorkers throughout this public health crisis, and these measures help prevent the spread of COVID-19 and save lives. We strongly disagree with this ruling, and we are pursuing every option to reverse this immediately."

2 On Your Side spoke with legal analyst Barry Covert about what we can expect next in this process.

"You can expect the Governor's office is going to appeal this to the intermediate appellate court the appellate division they may also go to other Supreme Court, there are 61 other Supreme Courts in New York State and see whether they can get a favorable ruling thereby causing a conflict between the courts that would have to be addressed by the appellate division or New York State court of appeals which is the highest court," Covert said.

Because the governor is fighting the decision, the State Education Department says an automatic stay will be issued and schools need to continue to follow masking rules.

Here is the statement that was sent to 2 On Your Side by Erie-Niagara Schools Superintendents Association President Mike Cornell.

"The State Education Department understands that Nassau County Supreme Court has ruled that the Department of Health exceeded its authority in enacting the mask regulation, 10 NYCRR 2.60, in Demetriou et al. v. New York State Dep’t of Health et al.  This regulation is the subject of conflicting decisions, insofar as Albany County Supreme Court recently upheld the regulation in Massapequa UFSD et al. v. Hochul, et al.

"It is SED’s understanding that the Department of Health will appeal the Nassau County Supreme Court decision, which will result in an automatic stay that will unambiguously restore the mask rule until such time as an appellate court issues a further ruling.  Therefore, schools must continue to follow the mask rule."

Additionally, 2 On Your Side reached out to Erie County Executive Mark Poloncarz's office about how this ruling affects the one currently issued for the county.

A spokesperson confirmed it does not affect the county's mandate, stating, "The action today by the Nassau court on the state’s mask mandate does not affect Erie County’s mask requirement, which is based on different state law. Erie County’s mask requirement remains in place."

Poloncarz released the following statement on Tuesday:

“Yesterday, a Nassau County State Supreme Court Judge issued a decision on the constitutionality of an order issued by New York State. The judge did not rule on the merits of a mask mandate, nor on the constitutionality of emergency orders issued by local governments. All local orders, including Erie County's, are still valid because they were issued under a different section of New York’s Executive Law. 

"As such, all prior Erie County emergency orders are still in full effect, including the emergency order issued on November 23, 2021 requiring all patrons and public facing staff in indoor Erie County public locations to wear masks. ‘Indoor public locations’ includes, but is not limited to, bars, restaurants, hotels, barber shops, beauty parlors, bowling alleys, schools, office complexes, shopping centers, malls, stores, and any other location that is open to the public.”

Niagara County does not have a county mandate, 2 On Your Side spoke with Niagara County Public Health Director Dan Stapleton who said their educate to cooperate initiative will continue until they hear otherwise from the NYS Department of Health.

Read the full ruling below.

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