Lee v. Mani & Pedi Inc.

Background

At the final pretrial conference on February 1, 2022, the court addressed health and safety procedures for the trial scheduled to start on February 14, 2022. The order states that it was effective immediately and was issued in light of a new district-wide health and safety protocol. The opinion does not describe the parties’ underlying claims or the issues to be tried.

Courtroom Masking and Testing Rules

The court ordered that only testifying witnesses could remove their masks during trial. A person otherwise permitted to remove a mask in the courtroom could do so only after testing negative that day, and before removing the mask, on an approved molecular diagnostic test. The requirement applied even when the person was fully vaccinated and had received a booster, and even when the person was in a witness box or at a podium equipped with high-efficiency particulate air filtration and enclosed by Plexiglas.

A witness removing a mask on successive days could follow an every-other-day testing schedule. The protocol did not apply to incarcerated people who were tested at their facilities before being transported to the courthouse. It also did not apply to a person who had a confirmed COVID-19 case within the preceding 90 days, verified by a doctor’s note or viral test result. The parties had to send proof of that confirmed case to the court’s COVID-19 response team and chambers by February 9, 2022.

Testing Procedures

The court would provide approved test kits at no charge. A witness could self-administer a court-provided test under court-staff supervision in Room 127 at the White Plains Courthouse, and the test had to be taken at least one hour before the witness appeared in court. Counsel had to arrange a testing time by email or telephone no later than February 9, 2022.

If a witness did not use a court-provided test, the order listed approved molecular tests, including PCR and other specified nucleic-acid amplification tests. Antigen tests, antibody tests, blood, plasma, serum, lateral-flow tests, tests lacking FDA authorization or approval, and a doctor’s note alone were not approved substitutes for the required test. Before a person removed a mask, the court had to receive confirmation through its staff of either a negative test result from that day or a confirmed COVID-19 case within the prior 90 days.

Courthouse-Entry Attachment

The order attached a district-wide standing order and related memoranda concerning entry into Southern District of New York courthouses. Those materials stated that people who had tested positive for COVID-19 or had been told by a health-care provider to assume they had COVID-19 within the previous 10 days could not enter. They also addressed symptoms, close contact, recent travel, vaccination status, screening questions, temperature checks for certain unvaccinated people, required masks in courthouse areas, hand sanitizer, and social distancing. People who failed or refused to follow the rules could be required to leave.

Disposition

Judge Judith C. McCarthy entered the courtroom protocol order. It did not decide the parties’ underlying dispute, grant or deny a merits motion, or state a disposition of any claim. This was an ancillary courtroom and courthouse-safety order.