NYS Public Health Legal Manual: A Guide for Judges, Attorneys ...

NEW YORK STATE PUBLIC HEALTH LEGAL MANUAL § 1.100
Law § 20(2)(a), the chief executive of the locality is authorized to
“proclaim a local state of emergency.” Exec. Law § 24(1). Once having
done so, local authorities may establish curfews, quarantine
wide areas, close businesses, restrict public assemblies and, under
certain circumstances, suspend local ordinances. However, in the
absence of the proclamation of a “local state of emergency,” the
existing statutory and common law police powers include most of
the same powers that could be activated by the state-of-emergency
declaration (except the suspension of laws). The distinction between
the exercise of statutory and common law police powers and the
exercise of statutory emergency powers is a matter of degree, with
the declaration of a local state of emergency addressing responses to
conditions that are “widespread or severe.”
Where the Governor has made a finding that “local governments are
unable to respond adequately” to a disaster, the Governor may declare
a “disaster emergency” by executive order. Exec. Law § 28(1).
Since the statutory scheme for responding to public health concerns
places that response primarily in local authorities, it is unlikely that
the State would take direct action in a public health crisis without a
governor’s order declaring a disaster emergency, unless the source of
the crisis is identifiable and specific enough to be addressed by the
issuance of an order of the State Commissioner of Health under PHL
§ 16.
One consequence of the issuing of a declaration of emergency on
either the state or local level is that it can set into motion statutory
provisions relating to the use of disaster emergency response personnel
to meet the emergency. These “disaster emergency response personnel”
are the replacements of the “civil defense forces” that were
created pursuant to the State Defense Emergency Act, which was
enacted in 1951 as a product of the “Cold War” to facilitate state and
local responses in an enemy “attack.” The SDEA does not apply to
naturally occurring outbreaks of disease. While the SDEA remains
in place to address enemy attacks, it has for the most part been subsumed
by the Executive Law emergency response provisions that
cover all emergencies, including attacks. See In re World Trade Cen-
53