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What's next for NY's mask mandate after legal limbo?

New York State Health Commissioner Dr. Mary Bassett (left) and Gov. Kathy Hochul
Office of the Governor
New York State Health Commissioner Dr. Mary Bassett (left) and Gov. Kathy Hochul.

New York's mask mandate for public, indoor spaces that don't have a vaccination requirement will remain in effect for at least the next three days while a legal challenge against the rule is litigated before an appellate court.

A decision handed down Monday afternoon by a state judge in Nassau County had struck down the mandate as unconstitutional, placing the rule in limbo. The New York Attorney General's Office then appeared virtually before an appellate judge Tuesday afternoon to ask that the decision be put on hold while they seek an appeal of the ruling.

That was granted a few hours later by Justice Robert Miller from the Appellate Division, Second Department. The request will be reconsidered Friday by a panel of judges from the court, and could ultimately be reversed.

Gov. Kathy Hochul applauded the decision in a statement Tuesday afternoon. It’s unclear if any actions beyond the stay and the appeal are planned for the time being.

"I commend the Attorney General for her defense of the health and safety of New Yorkers, and applaud the Appellate Division, Second Department for siding with common sense and granting an interim stay to keep the state's important masking regulations in place," Hochul said.

Hochul implemented the mask mandate in December for public indoor spaces that don’t require proof of vaccination upon entry. In other words, if vaccines aren’t required in that space, then masks have to be worn regardless of vaccination status.

State Supreme Court Justice Thomas Rademaker from Nassau County wrote in a decision Monday that Hochul, and specifically then-Acting Health Commissioner Dr. Mary Bassett, didn’t have the authority to issue the mandate.

“While the intentions of Commissioner Bassett and Governor Hochul appear to be well aimed squarely at what they believe is right to protect the citizens of New York State, they must take their case to the state Legislature,” Rademaker wrote.

He wrote in the decision that state statute didn’t allow Hochul to create new laws, which he said applied to the mask mandate.

There's been no indication from the state Legislature that it plans to codify Hochul's mandate, or expand her power. Lawmakers have largely allowed the executive branch to manage the state's response to the virus since the pandemic began.

Senate Majority Leader Andrea Stewart-Cousins (D-Westchester) told reporters on Tuesday that she'd like to see the legal process play out before they consider any additional action.

"They are taking it through the legal challenges and I think we, as a Legislature, will let that process play out," Stewart-Cousins said.

Assembly Speaker Carl Heastie, D-Bronx, said he wanted to speak with the full roster of Democrats in the lower chamber before considering legislative action, but that he, personally, supported mask mandates.

"The idea that masks don't help stem the tide of possible infecting other people, I think is short-sighted," Heastie said.

New York had argued that Hochul and Bassett were within their authority to create the emergency rule and plan to make the same case on appeal, according to filings.

The Appellate Division, Second Department, will first reconsider the state's request that the lower court's ruling be put on hold. After that's decided, the appellate court will then decide if Rademaker's decision should be upheld or reversed. It's unclear how quickly that process will play out, but courts often expedite cases with short-term consequences.