The following papers were read on Defendant David P. McKelvey's motion for summary judgment and Plaintiff's cross-motion for summary judgment against McKelvey and Plaintiffs' cross-motion for a protective order:

Under Motion Sequences No. 2 and 3, Defendant David P. McKelvey and Plaintiffs Grassi & Co., CPAs, P.C., Wealth Concepts LLC f/k/a Grassi Financial Services, LLC, Grassi Consulting LLC, GCM Systems, LLC, Grassi Valuation Services, LLC, Grassi Healthcare Consulting, LLC and Wealth Advisors, LLC respectively move and cross-move for an order, pursuant to CPLR 3212, granting them partial summary judgment regarding their entitlement to insurance policy commissions as well as the enforceability of the restrictive covenants found in the Grassi & Co. CPAs, P.C. Shareholders' Agreement.

Under Motion Sequence No. 4, Plaintiffs move for an order pursuant to CPLR 3103 granting it a protective order with respect to certain documents sought by Defendant David P. McKelvey and an order pursuant to CPLR 3124 requiring him to produce certain documents.

BACKGROUND

A.General

The parties to this action seek, inter alia, a determination as to who is entitled to the commissions generated by Defendant David P. McKelvey's ("McKelvey") sale of life insurance policies both while he was a shareholder of and employed by Plaintiff Grassi & Co., CPAs, P.C. ("Grassi & Co."), as well as thereafter. They also seek a determination concerning the enforcability of the restrictive covenants found in the Shareholders' Agreement between McKelvey and Grassi & Co.

In their complaint, Plaintiffs allege that McKelvey entered into a Shareholders' Agreement ("Agreement") with them that required him, as their employee and/or shareholder, to devote his best efforts to them and their clients. This included his full time and attention and refraining from any other gainful activity or business pursuit without their consent. Plaintiffs claim that their Agreement also precluded McKelvey from personally accepting any salary, commission, fee or gratuity from any client or prospective client without their approval. McKelvey was required to pay over to Plaintiffs all such earnings attributable to his personal services, however generated, with a limited exception not applicable here.

The Agreement provided that all clients and accounts serviced by their shareholders and/or their employees belonged to Plaintiffs and that the client identity was valuable, special and unique and not to be divulged by a shareholder during or at any time after his/her employment with Plaintiffs. In fact, the Shareholders' Agreement provided:

Restrictive Covenant. A former Shareholder (whether retired, disabled, expelled, redeemed or voluntarily or automatically withdrawn) shall not, directly or indirectly, for a period of two (2) years form the date or retirement, disability, expulsion, redemption or withdrawal (the "Restricted Period"): (i) approach, contract with, solicit or accept business for accounting or consulting services for himself or others, including any firm in which he becomes a principal, officer, associate or employee directly or indirectly, from any Client which was a Client of the Corporation at the date of such Shareholder's retirement, disability, explusion, redemption or withdrawal (a "Restricted Client"); or (ii) disturb, or in any manner interfere with, the Corporation's relationship with any [*2]Restricted Client.

B.Pleadings

As and for their first cause of action, Plaintiffs allege that despite the restrictions in the Agreement, during his employ and tenure as a shareholder, McKelvey concealed his receipt of, and failed to turn over, monies he earned from Plaintiffs' clients. This conduct resulted in McKelvey's unanimous expulsion at a Shareholders' Meeting held on June 1, 2006.

Plaintiffs further allege that since his expulsion, McKelvey has utilized their confidential information and sought to compete directly with them in violation of the restrictive covenant in the Agreement.

In their second cause of action, Plaintiffs seek a declaration, as well as a direction, that McKelvey may not directly or indirectly, for a period of two years from the date he was expelled from the Company, contact, solicit, approach or accept business for himself or others, from any Restricted Client, including, without limitation, contracting to offer his services as accountant, tax advisor, consultant or other fiduciary or as a director, or to offer any other professional services of any kind or nature and/or disturb or in any other manner interfere with Plaintiffs' relationships with any Restricted Client.Plaintiffs allege in their third cause of action that, in the event the Restrictive Covenant was or is violated, as and for damages, the Agreement entitles them to recover from McKelvey 150% of their net billing to any such Restricted Client for the twelve month period immediately preceding McKelvey's expulsion, as that "amount represents the amount [the] Shareholder would have to pay for clients in an arms-length transaction with a third party." Damages in such amount are sought.

In their fourth cause of action, Plaintiffs allege that the Agreement specifically recognizes that remedies at law would not be adequate to compensate them for a violation of the restrictive covenant so that equitable relief is available to Plaintiffs as well. Plaintiffs accordingly seek to enjoin McKelvey from divulging their confidential information; accepting money, fees, commissions or compensation directly or indirectly from its clients or accounts; and, from contacting, soliciting, approaching or accepting business for himself or others, including any firm in which he becomes a principal, officer, associate or employee, from any Restricted Clients, including, without limitation, contracting to offer his services as an accountant, tax advisor, consultant or other fiduciary or as a director, or to offer any other professional services of any kind or nature and/or disturbing or in any other manner interfering with Plaintiffs' relationship with the Restricted Clients.

In the fifth cause of action, Plaintiffs allege that despite having been advised that they had become broker of record on said life insurance policies, the Defendant insurance companies have paid, and are continuing to pay, commissions to McKelvey as their broker of record with respect to those policies which were originally brokered by McKelvey. Injunctive relief is sought to restrain the insurance companies from paying commissions to McKelvey.

Plaintiffs allege in the sixth and seventh causes of action that McKelvey violated the Agreement by withholding monies paid to him that should have been turned over to them. An accounting for monies received on Plaintiffs' behalf by McKelvey and the [*3]insurance companies, respectively, is sought.

In his verified answer, McKelvey alleges that, he alone held New York and New Jersey life insurance broker's licenses, and that none of the Plaintiffs did. McKelvey admits that he wrote certain life insurance policies which generated and may continue to generate commissions, including some with the Defendant insurance companies. Furthermore, he admits that he has received commissions from insurance companies, some of which he has forwarded to Plaintiffs and some of which he has not. Nevertheless, he alleges that pursuant to New York law, he, alone, is entitled to retain any and all such commissions and that, to the extent that the Agreement provides otherwise, it is illegal, void and unenforceable.

McKelvey further alleges that at a meeting held on June 5, 2006, he was coerced under threat of criminal action, without the benefit of an attorney, to execute documents, including changes of the broker of record from him to Plaintiffs on policies which he had written. McKelvey further alleges that at a meeting on June 6th or 7th, 2006, Louis Grassi, on behalf of Plaintiffs, falsely told Plaintiffs' employees that McKelvey had stolen or misappropriated funds and, as a consequence, had been expelled from Grassi & Co., thereby defaming and damaging him. McKelvey claims that he was wrongfully expelled from Grassi & Co. He contends that failure to turn over life insurance policy commissions was an improper basis for his expulsion because Plaintiffs were legally not entitled to them. McKelvey also alleges that Plaintiffs' threats to sue his new employer was improper and damaging. McKelvey also alleges that the restrictive covenants in the Agreement are not reasonable and necessary to protect Plaintiffs' legitimate business interests.

Finally, McKelvey alleges that Plaintiffs have wrongfully withheld funds from his capital accounts, bonuses, retirement benefits, cash balance under his pension plan, salary from June 1 through 5, 2006 and his cash profit distribution for 2006 to cover taxes for K-1 received by him for 2006.

In his first counterclaim, McKelvey seeks a declaration that he was wrongfully expelled from Grassi & Co.; that the substitution of broker of record forms are void; that he is entitled to the commissions that he has retained, as well as to recoup the commissions he forwarded to Plaintiffs and to retain any future commissions; and, that the restrictive covenants are unenforceable.

As and for his second counterclaim, McKelvey alleges that Plaintiffs breached the Agreement thereby entitling him to: (a) the funds in his tier capital accounts; (b) his 2005 bonus; (c) his vested retirement benefit; (d) his cash balance pension plan; (e) his salary for June 1 through 5, 2006; (f) his profit share for the period January 1, 2005 through June 5, 2006; and (g) a cash-basis profit distribution to cover taxes for his K-1 for 2006.

In his third counterclaim, McKelvey seeks damages for defamation.

McKelvey alleges various affirmative defenses; to wit: (1) unclean hands; (2) that any contractual obligation Plaintiffs seek to enforce violates public policy and, more specifically, is barred by the Insurance Law; (3) that the restrictive covenants are not reasonable or necessary to protect Plaintiffs' legitimate business interests.

C.Motion Papers [*4]

In support of his motion, McKelvey states that he received his New York State insurance license in 2002 and his New Jersey State insurance license in 2003. No one else affiliated with Plaintiffs obtained any such license until late 2005. Nevertheless, in 2002, he turned over all of the insurance commissions that were generated by his sales of insurance policies to Plaintiffs. However, in approximately 2004, he began retaining a portion of those commissions inasmuch as Plaintiffs had no right to them under the applicable laws. McKelvey specifically denies ever being charged with the responsibility of procuring an insurance license for Grassi & Co or any of the Plaintiff companies or their personnel. The substitution of broker of record forms were executed under coercion, duress and the threat of criminal prosecution. Lastly, he avers that the Agreement was with Grassi & Co. only.

In opposition to McKelvey's motion and in support of Plaintiffs' cross-motion Louis C. Grassi ("Grassi"), President of Grassi & Co., avers that McKelvey was an indirect shareholder of the other Plaintiff companies and that it was understood that the Shareholders' Agreement was a global agreement applicable to all of the Plaintiff companies. Grassi attests that Plaintiff Grassi Financial Services LLC ("Grassi Financial") was formed in 2002 and that its name was changed to Wealth Concepts, LLC ("Wealth Concepts") in 2004 or 2005. That company was formed with the intention of entering the financial service business, in which McKelvey expressed an interest. McKelvey was chosen at a partner's retreat to head up that entity and to procure an insurance license for the company. While Grassi Financial was not licensed to sell insurance and could not receive commissions directly, McKelvey assured Grassi that he was procuring Grassi Financial's insurance license. In fact, there was a facsimile transmission dated August 2, 2002, from Grassi & Co.'s attorney to McKelvey advising him that the New York State Department of Insurance permits an LLC to obtain an insurance license; that the LLC can consist of both licensed and non-licensed members but that the application must list all the members of the LLC. Furthermore, an application for such a license in the name of Grassi Financial dated November 15, 2002 was allegedly found among McKelvey's papers after he was expelled.

Grassi further alleges that, in accordance with the Agreement, a formal process was put in place pursuant to which McKelvey was to turn over to Grassi Financial/Wealth Concepts any commissions he received from the sales of insurance policies, which monies were to be used to pay the expenses of Grassi Financial/Wealth Concepts, including reimbursement of the full salary paid to McKelvey. Any profits were to be shared among the members of Grassi & Co. Grassi claims that he was advised by counsel that such practice was in accordance with New York State Law. He represents that, at all times, Grassi & Co. paid all of the expenses of Grassi Financial/Wealth Concepts, including, but not limited to, McKelvey's earned compensation, which was $170,246 in 2002, $244,000 in 2003, $226,757 in 2004 and $272,000 in 2005. All of this was based upon the express understanding that income from Grassi Financial/Wealth Concepts would be turned over to Grassi & Co.

Grassi further alleges that on or about November 15, 2002, McKelvey entered into a Letter of Understanding with the Aurium Group, Inc. ("Aurium"), pursuant to which Aurium agreed to share its compensation with Grassi Financial for completed, jointly developed Aurium transactions with Grassi Financial's clients. Substantially all of the [*5]commission checks McKelvey received from the Defendant insurance companies were a result of that arrangement with Aurium. On or about January 28, 2003, unbeknownst to Grassi or any other shareholder, McKelvey signed an "Addendum to Grassi Agreement" ("Addendum") with Aurium, pursuant to which Aurium agreed to separately pay McKelvey independently five (5%) percent of the total gross commissions earned for each transaction McKelvey closed. It is claimed that McKelvey signed the Addendum as a member of Grassi Financial without authorization from anyone at Grassi Financial or Grassi & Co. and that McKelvey failed to inform anyone at Grassi & Co. about that Addendum which diverted income from Grassi & Co. to McKelvey personally.

At a Shareholders' Meeting on June 1, 2006, the shareholders unanimously voted to expel McKelvey based on his violations of the Shareholders' Agreement, including his failure to turn over commissions. As for the June 6, 2006 meeting with McKelvey, Grassi denies that any coercion or threats took place but instead claims that McKelvey acknowledged his wrongful retention of commissions. Grassi claims that McKelvey said that he had kept the commissions not based on some legal right but due to personal financial problems and that McKelvey even offered to repay them.

In response, McKelvey again attests that he was never assigned the task of procuring an insurance license for the Plaintiffs.

Various members of Grassi & Co. have submitted affirmations claiming that McKelvey was supposed to do the necessary paperwork for Grassi Financial to obtain an insurance license so as to enable it to lawfully accept commissions and that McKelvey continuously represented that he was in the process of doing so. As for the meeting with McKelvey on June 5, 2006, Richard E. Gavin, a Grassi & Co. partner, who was present at the meeting, confirmed Grassi's version of what transpired/ Gavin also attests that McKelvey never said that he kept the commissions due to a legal licensing issue. He asserts that McKelvey was not threatened or coerced into signing the substitution of broker forms.

Both the Plaintiffs and McKelvey seek summary judgment with respect to their rights to the commissions generated by McKelvey's sale of life insurance policies. Three blocks of time are at issue: When only McKelvey had an insurance license; after Grassi Financial, Mitchell Zachary, and Wealth Concepts obtained insurance licenses; and,

after the substitution of broker forms were executed by McKelvey on June 5, 2006. Both Plaintiffs and McKelvey also seek summary judgment regarding the enforcement of the Restrictive Covenants in the Agreement.

DISCUSSION

A.General Standard Summary Judgment

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Sheppard-Mobley v. King, 10 AD3d 70, 74 (2nd Dept. 2004), aff'd. as mod., 4 NY3d 627 (2005). See, Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986); and Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). The failure of the moving party to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Sheppard-Mobley v. King, supra at 74. See also, Ayotte v. Gerasio, 81 NY2d [*6]1062 (1993); Simmons v. Pantoja, 25 AD3d 777 (2nd Dept. 2006); and Pina v. Flik Intnat'l. Corp., 772 (2nd Dept. 2006). Once the movant's burden is met, the burden shifts to the opposing party to establish the existence of a material issue of fact. Alvarez v. Prospect Hosp., supra at 324; and Zuckerman v. City of New York, 49 NY2d 557, 562 (1980).

B.Insurance Commissions

Pursuant to the Agreement, McKelvey was obligated to turn the insurance commissions generated by his sale of insurance policies over to Grassi & Co., at least, and all of the Plaintiffs, if the Agreement was applicable on a global basis. However, the Insurance Law places restrictions on the circumstances in which insurance commissions can be shared. Plaintiffs may not obtain enforcement of the Agreement insofar as it is illegal. Gutfreund v. DeMian, 227 AD2d 234 (1st Dept. 1996), citing McEvoy v. American Lumberman's Mut. Cas. Co., 51 NYS2d 306 (m.o.r.) (Sup. Ct. Queens Co.1994), aff'd., 269 App. Div. 857 (2nd Dept. 1945), aff'd., 295 NY 906 (1946) and Richards Conditioning Corp. v. Oleet, 21 NY2d 895 (1968). See also, McConnell v. Commonwealth Pictures Corp., 7 NY2d 465 (1960) (a party to an unlawful contract cannot ask a court to aid him in carrying out his illegal activity).

Even the doctrine of equitable estoppel will not enable the Plaintiffs to enforce the Agreement if it violates state law. In any event, assuming, arguendo, that McKelvey could be estopped from relying on the illegality of the Agreement to avoid its enforcement, equitable estoppel would nevertheless not apply. Plaintiffs cannot fairly claim the lack of a means of discovering the truth. That is, a simple inquiry to the appropriate authorities; i.e., the Department of Insurance, during the many years their application for an insurance license was allegedly pending would have enlightened them regarding McKelvey's misleading conduct with respect to the procurement of their license. Under the circumstances, Plaintiffs' reliance was not reasonable so as to invoke the doctrine of equitable estoppel. See, Nassau Trust Co. v. Montrose Concrete Products Corp., 56 NY2d 175, 184 (1982); and Siger v. Rich, 308 AD2d 235, 242 (1st Dept. 2003).

Insofar as the Agreement required McKelvey to turn over insurance policy commissions to any of the Plaintiffs when they lacked an insurance license, it was, in fact, illegal for him to have done so. Insurance Law §§ 2114-2116 prohibits non-licensed persons or companies from receiving insurance commissions unless there is no discussion of specific insurance policy terms or conditions by it and its compensation is not based on whether a sale is made. See also, Insurance Department, Opinion dated March 17, 2003, entitled Sharing Commissions with Unlicensed Entities for Referrals; State of New York Insurance Department Opinion dated March 11, 2005, entitled Compensation to Non-Licensed Party Subsequent to Referral. Here, not only does McKelvey maintain that Plaintiffs' employees discussed policy terms which Plaintiffs have failed to refute Plaintiffs' right to any commissions was indisputably entirely dependent on the sale of a policy by McKelvey. Plaintiffs' claim seeking to recover commissions withheld by McKelvey before Grassi, Mitchell Zachary, a tax partner with the firm, and/or Wealth Concepts procured an insurance license must be dismissed.

As an extension of such holding, McKelvey is entitled to recover any [*7]commissions generated by policies sold before any of these entities were licensed. Whether McKelvey was lawfully obligated to turn over any commissions generated by his sale of insurance policies while employed by and as a shareholder of Grassi & Co. after Grassi and/or Wealth Concepts procured an insurance license presents an issue of fact. The question of whether the Agreement was global and applied to all of the Plaintiff companies cannot be resolved on the papers submitted herein

As for the commissions earned following McKelvey's execution of the substitution of broker of record forms, an issue of fact also exists as to whether those changes were executed under coercion and/or duress. If the substitution of broker of record forms are found to be unenforceable, resolution of issues of whether the Agreement was global and related issues surrounding the Agreement will determine who is entitled to the commissions after Grassi & Co. and/or Wealth Concepts obtained an insurance license and after McKelvey was expelled.

C.McKelvey's Expulsion

Contrary to McKelvey's argument, Plaintiffs' expulsion of him was not based solely and entirely on his withholding of commissions to which the Plaintiffs were not legally entitled. Rather, it is obvious McKelvey was expelled due to his failure to procure Grassi Financial's insurance license as well as his retention of commissions without informing Plaintiffs. As such, McKelvey's was not illegally expelled from Grassi & Co.

D.Restrictive Covenants

As for the Restrictive Covenant, it is enforceable if it is reasonable in time and scope. "In this context a restrictive covenant will only be subject to specific enforcement to the extent that it is reasonable in time and area, necessary to protect the employer's legitimate interests, not harmful to the general public and not unreasonably burdensome to the employee." Reed, Roberts Assocs. v. Strauman, 40 NY2d 303, 307 (1976). "[R]estrictive covenants relating to employment are not favored, and will be deemed unenforceable unless reasonable in scope, duration and geographical area and either necessary to protect the employer from unfair competition that stems from the employee's use or disclosure of trade secrets or confidential customer lists or related to an employee whose services are unique or extraordinary." Chernoff Diamond & Co. v. Fitzmaurice, Inc., 234 AD2d 200, 201-2 (1st Dept. 1996), citing Columbia Ribbon and Carbon Mfg. Co. v. A-1-A Corp., 42 NY2d 496, 499 (1997); Reed, Roberts Assocs., Inc. v. Strauman, supra , at 308 and Purchasing Assocs. v. Weitz, 13 NY2d 267, 272, 274 (1963). However, greater weight to the interest of the employer is given to restrictions involving "[a]greements not to compete between professionals within a confined geographical area because professional services are deemed to provide unique or extraordinary' services." BDO Seidman v. Hirshberg, 93 NY2d 382, 389 (1999), citing Gelder Medical Group v. Webber, 41 NY2d 680 (1977); Karpinski v. Ingrasci, 28 NY2d 45 (1971); and Reed, Roberts Assocs. v. Strauman, supra at 308. In BDO Seidman, the Court of Appeals found that "accountancy has all the earmarks of a learned profession" and restrictive employment covenants have been enforced in the insurance industry, too, under certain circumstances, supra at 389. See, Chernoff Diamond & Co. v. Fitzmaurice, Inc., supra at 202-3 (1st Dept. 1996). See also, Willis of New York, Inc. v. DeFelice, 299 AD2d 240 (1st Dept. 2002).

Nevertheless, "the application of the test of reasonableness of employee [*8]restrictive covenants focuses on the particular facts and circumstances giving context to the agreement." BDO Seidman v. Hirshberg, supra at 390, citing Karpinski v. Ingrasci, supra at 49; and Reed, Roberts Assocs. v. Strauman, supra at 307. The Court of Appeals held that "learned profession precedents do not obviate the need for independent scrutiny of the anti-competitive provisions of" an agreement. BDO Seidman v. Hirshberg, supra at 391. While "an employer has a legitimate interest in preventing former employees from exploiting or appropriating the goodwill of a client or customer, which had been created and maintained at the employer's expense, to the employer's competitive detriment" (BDO Seidman v. Hirshberg, supra at 392, citing Technical Aid Corp. v. Allen, 591 A.2d 262 [Texas Sup. Ct. 1991]; Peat Marwick Main & Co. v. Haass, 818 S.W.2d 381 [1991]), the court must still analyze the agreement to identify the legitimate interest of Plaintiffs and determine whether the covenant is no more restrictive than is necessary to protect that interest. See, BDO Seidman v. Hirshberg, supra at 391.

While McKelvey and Plaintiffs both seek a declaration as to the enforceability of the restrictive covenant, beyond mere allegations, which are wholly insufficient, neither party has demonstrated how or why the restrictive covenants are, or are not, reasonable. Both Plaintiffs' and McKelvey's motions relating to the restrictive covenants must be denied.

E.Protective Order

By way of a Demand to Produce, McKelvey seeks:

5.All documents concerning the financial state of each of the Plaintiffs and other Grassi-related entity from 2001 to date . . . .

6.All documents concerning the method by which the compensation of the partners and shareholders of the Plaintiffs was determined from 2001 to date.

7.All documents concerning any compensation of any partner or shareholder of any of the Plaintiffs from 2001 to date, including but not limited to base pay and bonus.

To the extent that McKelvey seeks these documents in an attempt to establish that he was underpaid and, therefore, was entitled to retain the commissions he did, that issue if moot, in view of this court's determination that he was legally entitled to retain them at least until such time as Grassi and/or Wealth Concepts procured a license. In any event, the Agreement permitted the Executive Committee to determine shareholder salaries based upon the value of their services "in its sole discretion." Thus, any challenge by McKelvey to his salary as justification for withholding commissions would fail. Furthermore, the firm's policy requires the information sought to be kept confidential. Plaintiffs must be granted a protective order with respect to their production of these documents, at this time.

F.Document Production

Disclosure of tax returns is disfavored since income tax returns contain confidential and private information. Walter Karl, Inc. v. Wood, 161 AD2d 704 (2nd Dept. 1990); and Briton v. Knott Hotels Corp., 111 AD2d 704 (2nd Dept. 1985). The party seeking to obtain production of [*9]income tax returns must make a strong showing of necessity and an inability to obtain the information contained in the income tax return from any other source. Abbene v. Griffin, 208 AD2d 483 (2nd Dept. 1994). See also, Cosentino v. Schwartz, 155 AD2d 640 (2nd Dept. 1989). A party will not be required to produce one's tax returns if the information may be obtained from any other source. Samide v. Roman Catholic Diocese of Brooklyn, 5 AD3d 463 (2nd Dept. 2004).

The information Grassi seeks from McKelvey can be obtain from other sources.

Therefore, McKelvey does not have to produce his 2005 income tax return.

Accordingly, it is,

ORDERED, that Defendant David P. McKelvey's motion for summary judgment for insurance commissions if granted with regard to commissions earned on any life insurance policies placed by McKelvey prior to any of the Plaintiffs being licensed to sell such insurance and, in all other respects, is denied; and it is further,

ORDERED, that Plaintiffs' cross-motion for summary judgment with regard to life insurance commissions is denied; and it is further,

ORDERED, that Plaintiffs' motion for a protective order is granted and for production of McKelvey's tax returns is denied; and it is further,

ORDERED, that counsel for the parties shall appear for a status conference on April 17, 2007 at 9:30 a.m.

This constitutes the decision and Order of the Court.

Dated: Mineola, NY_____________________________

March 12, 2007Hon. LEONARD B. AUSTIN, J.S.C.