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Update: An appellate court judge late this afternoon ordered a stay of the Nassau Supreme Court judge’s order. See separate story.

A State Supreme Court judge in Nassau County has ruled the State Health Department’s mask mandate “null, void and unenforceable as a matter of law.”

A decision and order filed yesterday permanently enjoined the state from enforcing the emergency rule issued by the commissioner of health last month requiring everyone over the age of 2 and able to medically tolerate it to wear a face covering while in a public place. The order also barred the state from readopting the rule.

But the mandate remains in effect pending an appeal immediately filed by the state. N.Y. State Attorney General Letitia James filed a notice of appeal yesterday. Under state Civil Procedure Law an appeal filed by the state automatically stays enforcement of the decision.

Justice Thomas Rademaker ruled that State Commissioner of Health Mary Bassett lacked legal authority to promulgate the mask mandate rule on Dec. 10 because it was not authorized by legislation or executive order.

“Surely the Commissioner has the authority to implement and apply rules concerning public health. However, nowhere in the Public Health Law is the Commissioner bestowed with the authority to make a law,” the judge wrote. Law-making authority is entrusted solely to the State Legislature, he wrote.

“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.

“Should the State Legislature, representative of and voted into office by the citizens of New York, after publicly informed debate, decide to enact laws requiring face coverings in schools and other public places then the Commissioner would likely be well grounded in properly promulgated and enacted rules to supplement such laws,” Rademaker wrote.

Gov. Kathy Hochul responded to the decision in a statement last 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,” Hochul said. “We strongly disagree with this ruling, and we are pursuing every option to reverse this immediately.”

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Denise is a veteran local reporter, editor, attorney and former Riverhead Town councilwoman. Her work has been recognized with numerous awards, including investigative reporting and writer of the year awards from the N.Y. Press Association. She is a founder, owner and co-publisher of this website.Email Denise.