MINEOLA, N.Y. (AP) — A New York judge ruled Monday that the state’s mask mandate can’t be enforced, after it was reinstituted by Gov. Kathy Hochul over concerns about a winter surge of coronavirus cases.

State Supreme Court Judge Thomas Rademaker said in his decision that the state Department of Health didn’t have the legal authority to implement the mandate, and that it was up to the state Legislature to do so if needed.

The mandate “is a law that was promulgated and enacted unlawfully by an executive branch state agency, and therefore void and unenforceable,” the judge said.

The state had initially instituted a mask mandate in April 2020 that ended in June 2021 for vaccinated individuals; Hochul announced in mid-December that it would go back into effect for at least a month. Earlier this month, the state health department said the mandate would be in place until Feb 1.

In a statement, Hochul said, “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.”

The ruling comes as the omicron wave that gripped New York state appears to be fading. The state averaged around 23,400 new cases of the virus per day in the seven-day period that ended Sunday, down from 74,600 per day during the wave’s peak in early January. Hospitalizations are dropping, too, declining 17% statewide in the past seven days.