In this police misconduct action, plaintiff John Butler seeks an order pursuant to CPLR 3124 compelling defendant Police Officer Brian T. Reich to appear for a further examination before trial to answer questions that he was instructed by his counsel not to answer at an examination held on July 31, 2006. Although not included in the Notice of Motion, Plaintiff also asks for copies of documents related to the subject matter of certain unanswered questions, and, because addressed in the opposition of defendant Reich and co-defendants City of New York, Police Officer David Lambert and Police Officer James Armstrong, the requested documents will be addressed by the Court as well.

Plaintiff's Complaint arises out of an incident on May 2, 2004, when the vehicle Plaintiff was driving was stopped, and Plaintiff was arrested and charged with criminal possession of a weapon, assault, forgery, and resisting arrest. The Complaint seeks compensatory and punitive damages for battery, negligence, negligent hiring and retention, false arrest, false imprisonment, malicious prosecution, and for Federal civil rights violations under 42 USC § 1983. The City [*2]has answered for itself and for Officers Reich, Lambert and Armstrong.

Officer Reich was produced for deposition as a witness on his own behalf and as a witness for the City. (See Transcript of Examination Before Trial of P.O. Brian Reich, Exhibit B to Affirmation in Support, at 30-31.) He was instructed by his counsel not to answer the following questions:

1."Are you married or single?" (See id., at 30.)

2."Have you ever been married?" (See id., at 31.)

3."Are you divorced?" (See id.)

4.Referring to "somebody from the ADA or from the DA's office," "what did you say to them, what did they say to you, generally?" (See id., at 73-74.)

5."Have you ever been the subject of a disciplinary hearing the use of excessive force prior to May 2nd 2004?" (See id., at 118.)

6."To your knowledge, had Officer Lambert or Officer Armstrong ever been the subject of a disciplinary proceeding prior to May 2nd, 2004, based upon the use of excessive force?" (See id., at 119.)

7."To your knowledge, had any of the officers involved in the arrest of Mr. Butler on May 2nd, 2004, ever been the subject of disciplinary proceedings based upon their use of excessive force?" (See id.)

8."Have you ever been the subject of a complaint to the Civilian Complaint Review Board regarding use of excessive force?" (See id.)

9."Do you know if Officer Lambert or Officer Armstrong have ever been the subject of a complaint with the Civilian Complaint Review Board regarding the use of excessiveforce prior to May 2nd, 2004?" (See id., at 120.)

10."Do you know if any of the police officers involved in the arrest of Mr. Butler had ever been the subject of complaint with the Civilian Complaint Review Board regarding the use of excessive force prior to May 2nd 2004?" (See id.)

11."At the time of this incident, were you undergoing counseling for any purpose?" (See id.)

12."Were you undergoing any sort of psychiatric or psychological counseling?" (See id., at 121.) [*3]

13."[P]rior to this incident, did you ever have to take any anger management course?" (See id., at 124.)

14."Prior to this incident, were you required by the Police Department to undergo stress management course?" (See id.)

The deposition of Police Officer Reich was conducted prior to the effective date of the Uniform Rules for the Conduct of Depositions (Uniform Rules for the Trial Courts, 22 NYCRR Part 221), but "the basic rules of liberal discovery and civility pre-date Part 221." (See Lipp v Zigman, 14 Misc 3d 1217 [A], 2007 NY Slip Op 50064 [U], * 2 [Sup Ct, Nassau County].) "The proper procedure during the course of an examination before trial is to permit the witness to answer all questions posed, subject to objections pursuant to subdivisions b, c and d of CPLR 3115, unless the question is clearly violative of the witness's constitutional rights or of some privilege recognized in law, or is palpably irrelevant." (Mora v Saint Vincent's Catholic Med. Ctr. of NY, 8 Misc 3d 868, 870 [Sup Ct, New York County 2005]; See also O'Neill v Ho, 28 AD3d 626, 627 [2d Dept 2006]; Tardibuono v County of Nassau, 181 AD2d 879, 881 [2d Dept 1992]; Freedco Products, Inc. v New York Telephone Co., 47 AD2d 654, 655 [2d Dept 1975].)

"There shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action, regardless of the burden of proof." (CPLR 3101 [a].) "The words material and necessary' are . . . to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity." (Allen v Crowell-Collier Publishing Co., 21 NY2d 403, 406 [1968].) "The test is one of usefulness and reason." (Id.) "The word necessary' . . . mean[s] needful' and not indispensable." (Id., at 407.) "CPLR 3101 . . . requires revelation of inadmissable testimony that may lead to discovery of admissible evidence." (Shapiro v Levine, 104 AD2d 800, 800 [2d Dept 1984]; see also Prink v Rockefeller Center, 48 NY2d 309, 314 [1979]; Mann v Cooper Tire Co., 33 AD3d 24, 29 [1st Dept 2006].)

"Article 31 was substantially amended in 1993 to broaden the reach of the disclosure devices, but the general view is that the amendments merely codified what New York courts had already effectively determined by making disclosure standards comparable to the liberal, federal standard of discovery under F.R.C.P. 26 (b) (1)." (Id.) Of particular importance in this action and others including § 1983 Federal civil rights claims, "we are governed by Federal law in determining discovery motions notwithstanding possibly more restrictive State law norms, especially involving law enforcement records," and "Federal law has allowed in such civil rights cases for much more liberal discovery of recollections and documentation of prior complaints and police history, subject to appropriate redaction to protect informers or privacy." (See Ramos v City of New York, 285 AD2d 284, 306-07 [1st Dept 2001]; see also Finn v City of New York, 4 AD3d 218, 219 [1st Dept 2004]; Mann v Alvarez, 242 AD2d 318, 320 [2d Dept 1997].)

The deposition questions at issue can be roughly categorized as related to marital status (nos. 1-3); discussions with an Assistant District Attorney or other person within the District's Attorney's Office concerning Plaintiff's arrest (no. 4); disciplinary proceedings and civilian [*4]complaints (nos. 5-10); and counseling, including psychiatric and psychological counseling, and anger and stress management (nos. 11-14.)

With respect to the questions related to Officer Reich's marital status, Defendants argue that the questions were "palpably improper" because the officer's marital status "has absolutely no bearing or relevance to the case at hand." (See Affirmation in Opposition, ¶ ¶ 3-4.) Plaintiff argues that, "[i]f it is determined that this witness was indeed involved in a divorce which was based upon spousal abuse or if there were complaints of domestic violence not protected by the Court granting the divorce, this would certainly lead to further discoverable documents." (See Reply Affirmation, at 2.) Given the tenuous and remote relationship, if any, between the use of force incident to an arrest and allegations of domestic violence, the lack of any evidence here that would suggest a history of domestic violence, and the interest in ensuring the safety of police officers' families, the proferred justification for the marital status questions is rejected.

With respect to the question concerning discussions between Officer Reich and representatives of the District Attorney's Office concerning prosecution of Plaintiff, "[t]he City objects to the question being answered because the Kings County District Attorney's Office is not a party to this action, and the DA's Office should have the opportunity to assert the Prosecutorial Privilege to protect its interests in this matter." (See Affirmation in Opposition, ¶ 5.) The City fails, however, to describe the privilege or cite authority for its judicial recognition; fails to show that such a privilege would be recognized under Federal discovery rules in § 1983 actions; and fails to establish the City's standing to assert the privilege if it is recognized.

In addition to a Prosecutorial Privilege, Defendants contend that "the information which Plaintiff's counsel seeks to elicit should not be disclosed as it is protected by the Public Interest Privilege." (See id.) Defendants have cited no authority to support the existence in the § 1983 context of a privilege for discussions with prosecutors. In the absence of a "specific federal rule," the court must balance the interests disfavoring disclosure and the interests favoring disclosure, as set out in Judge Weinstein's seminal opinion in King v Conde (121 FRD 180 [EDNY 1988]), "with the party invoking the privilege bearing the burden of proof." (See Finn v City of New York, 4 AD3d at 219.)

King v Conde (121 FRD 180) addressed the dicoverability of police personnel files and complaint records of police officers who were defendants in a § 1983 action. Although rejecting the direct applicability of state privilege law, including New York Civil Rights Law § 50-a, the court describes a "procedure and test . . . to govern all discovery disputes over police records in federal civil rights actions" in the Eastern District, "regardless of the label used to refer to the privilege." (See id., at 187-88.) Among the labels mentioned is an "official information" privilege, which appears to be another label for the "public interest" privilege. (See Cirale v 80 Pine Street Corp., 35 NY2d 113, 118 n1 [1974].) The procedure is essentially in two parts.

First, "[i]n order to assert a claim of privilege against disclosure of police materials . . . , the officers or the police department . . . must make a substantial threshold showing' . . . that there are specific harms likely to accrue from disclosure of specific materials, based upon [a] [*5]balancing test." (King v Conde, 121 FRD at 189 [quoting Kelly v City of San Jose, 114 FRD 653, 669 (NDCA 1987)].) The government must specify the documents or class of documents for which the privilege is claimed, and "must explain the reasons for nondisclosure with particularity, so that the court can make an intelligent and informed choice as to each requested piece of information." (See id. [emphasis added].)

The assertion of privilege must be accompanied by "a declaration or affidavit, under oath and penalty of perjury, from a responsible official within the agency who has personal knowledge of the principal matters to be attested to in the affidavit or declaration." (See id. [quoting Kelly v City of San Jose, 114 FRD at 669].)

"This statement must be based on personal review of the documents by an official in the police agency (not the defendant's attorney) and must explain (not merely state conclusorily) how the materials at issue have been generated or collected; how they have been kept confidential; what specific interests (e.g. of the police officers, of law enforcement, or of public concern) would be injured by disclosure to plaintiff, to plaintiff's attorney, and to the public; and the projected severity of each such injury." (Id.)

If the court determines that the defendant's "threshold burdens" have not been met, "direct disclosure is in order," that is, without prior review by the court. (Id., at 190.) If the threshold showing is made, "the court may then review the materials at issue in camera and decide which, if any, to withhold from disclosure," or to disclose with redactions or subject to a protective order. (See id.) In making the determinations as to disclosure, "[t]he court must balance the interests favoring and disfavoring disclosure, keeping in mind that the burden of persuasion rests on the party seeking to prevent disclosure." (See id., at 190-91.)

The factors disfavoring disclosure include: "(1) Threat to police officers' own safety"; "(2) Invasion of police officers' privacy"; "(3) Weakening of law enforcement programs"; "(4) Chilling of police internal investigative candor"; "(5) Chilling of citizen complaint candor"; "(6) State privacy law." (See id., at 191-94.) The factors favoring disclosure include: "(1) Relevance to the plaintiff's case"; "(2) Importance to the plaintiff's case"; "(3) Strength of the plaintiff's case"; "(4) Importance to the public interest."

As applied to discussions between police officers and prosecutors concerning an arrest at issue, the factors articulated may not sufficiently address the interests of third parties, including the prosecutors. It is clear, however, that, to the extent state privilege law would protect such interests, it "may be a useful referent for courts in federal question cases." (See id. at 194.) "The court should consider the policies underlying the state law and weigh those policies just as any other factors disfavoring disclosure, keeping in mind that state laws may work to protect state officials against the enforcement of federal rights." (Id.)

"A public interest privilege inheres in certain official confidential information in the care and custody of governmental entities." (Matter of World Trade Ctr. Bombing Litig., 93 NY2d 1, 8 [1999].) "The justification for the privilege is that the public interest might otherwise be [*6]harmed if extremely sensitive material were to lose this special shield of confidentiality." (Id.) "Whether the privilege attaches in a particular setting is a fact-specific determination for a fact-discretion weighing court, operating in camera, if necessary." (Id.) The required "balancing of competing interests" is a "fact-driven" process "not readily amenable to matter-of-law dictates." (Id., at 12.)

To the extent that any discussions between Officer Reich and the prosecutors include statements made by a witness to a prosecutor, those statements would be presumptively subject to the privilege. (See Chebere v Johnson, 3 AD3d 365, 366 [1st Dept 2004]; Sanchez v City of New York, 201 AD2d 325, 326 [1st Dept 1994].) Beyond that, "[g]enerally, the information received or the records made thereof by public investigating officials is not subject to disclosure or inspection, but there are exceptions." (Matter of Langert v Tenney, 5 AD2d 586, 589 [1st Dept 1958].) "[T]he privilege is displaced by a superior public interest, if there be one." (Id.)

"There must be specific support for the claim of privilege," and "the governmental agency [must] come forward and show that the public interest would indeed be jeopardized by a disclosure of the information." (Cirale v 80 Pine Street Corp., 35 NY2d at 119.) "The identity of persons communicating information to prosecutorial agencies concerning the commission of crimes has long been accorded the privilege of confidentiality . . . as an aid to law enforcement, and in order to keep sources of information from drying up." (People v Pena, 37 NY2d 642, 644 [1975].) On the other hand, "[p]ublic interest encompasses not only the needs of the government, but also the societal interests in redressing private wrongs and arriving at a just result in private litigation." (Cirale v 80 Pine Street Corp., 35 NY2d at 118.)

Here, it is clear that Defendants have not established that the content of any discussions between Officer Reich and any prosecutor is exempt from disclosure. Defendants do not recognize the predominance of Federal disclosure rules in § 1983 actions, and do not provide any factual or evidentiary basis for the State public interest privilege. (See Affirmation in Opposition, ¶ 5.) Officer Reich will, therefore, be required to appear for further examination. Because, however, the District Attorney may have a cognizable interest to be protected, even where, as here, proceedings with respect to the underlying criminal charge are apparently completed (see Transcript of Examination Before Trial of P.O. Brian Reich, at 76; see also Matter of Pittari v Pirro, 258 AD2d 202 [2d Dept 1999]; Hawkins v Kurlander, 98 AD2d 14 [4th Dept 1983]), the District Attorney should be given sufficient notice of the resumed deposition to allow for an application by order to show cause for a protective order.

With respect to the deposition questions concerning counseling, including psychiatric and psychological counseling, and anger and stress management courses, Defendants' only stated basis for exemption from disclosure is that the answers to the questions "will not lead to any relevant information." (See Affirmation in Opposition, ¶ 6.) As explained by Defendants, the City "has interposed an Answer on behalf of PO Reich," and "[w]here an employee is acting within the scope of employment, thereby, rendering the employer liable for any damages caused by the employee's negligence under a theory of respondeat superior, as in the case sub judice, no claim may proceed against the employer for negligent retention and hiring." (See id., citing [*7]Karoon v New York City Transit Authority, 241 AD2d 323 [1st Dept 1997].)

Although the City has indeed interposed an Answer on behalf of Officer Reich, that Answer denies Plaintiff's allegations as to scope of employment for all of the pleaded causes of action, except battery. (See Second Amended Answer, ¶ ¶ 1, 4, 5.) The Second Department recently held that, "in the absence of a clear concession by the [City] that the [police] officer acted completely within the scope of his employment . . . , the claimants were entitled to plead incompatible theories of recovery in the alternative." (Pickering v State of New York, 30 AD3d 393, 394 [2d Dept 2006].) As a result, the claimants "demonstrated the relevance of . . . personnel file materials to their causes of action, inter alia, for negligent hiring and/or training," and were entitled to disclosure of the materials. (See id.) Even if Plaintiff's negligent hiring and retention causes of action were no longer in the case, Defendants make no showing that the questions "will not lead to any relevant information" as to the remaining causes of action.

The Court concludes, nonetheless, that the questions concerning counseling, including psychiatric and psychological counseling, were improper. Plaintiff argues only that "[a]ny character traits of this witness, especially violent ones, given the claims being sued for, is not only relevant, but critical, necessary, and material to the litigation of this lawsuit." (See Reply Affirmation, at 3.) But even in § 1983 actions, "[t]he plaintiff's allegations of excessive force and false arrest do not, by themselves, place the officers' mental health in issue." (See Mann v Alvarez, 242 AD2d at 320.)

The same conclusion, however, does not hold for the questions concerning anger management and stress management courses, to the extent that Officer Reich might have been required or encouraged to attend by the Department. Such questions are clearly relevant to the alleged cause of action for negligent retention.

Defendants focus their attention on the deposition questions concerning disciplinary proceedings and civilian complaints, which they address as demands for related documents. (See Affirmation in Opposition,¶ ¶ 7, 8-25.) As previously noted, Plaintiff seeks an order compelling Defendants to produce "all investigative records" (see Affirmation in Support, at 3), which, presumably, is intended to include records related to any disciplinary proceedings and civilian complaints identified through an affirmative answer to any of the unanswered questions. Defendants' primary grounds for claiming an exemption from disclosure are Civil Rights Law § 50-a, the public interest privilege, certain exemptions from the Freedom of Information Law ("FOIL") (Public Officers Law § 84 et seq), and a "law enforcement privilege."

As previously discussed, Civil Rights Law § 50-a is not directly applicable to disclosure in an action based in part on an alleged civil rights violation under 42 USC § 1983. (See King v Conde, 121 FRD at 187-88.) The State statute, therefore, provides no basis for counsel's instructions to Officer Reich not to answer questions posed during his examination before trial. (See Mann v Alvarez, 242 AD2d at 320.) Indeed, because § 50-a only expressly addresses "personnel records," it appears not to confer a testimonial privilege in any event. (See King v Conde, 121 FRD at 197; but see Sabilia v State of New York, 14 Misc 3d 1228 [A], 2007 NY [*8]Slip Op 50204 [U], * 3- * 5 [Ct Claims].)

Civil Rights Law § 50-a is, however, "a useful referent for courts in federal question cases." (See King v Conde, 121 FRD at 194.) The statute renders confidential the "personnel records . . . used to evaluate performance toward continued employment or promotion" of police officers. Such records are "not subject to inspection or review without the express written consent of the officer or "as may be mandated by lawful court order." (See Civil Rights Law

§ 50-a [1].) Unlike the procedure specified in King v Conde (121 FRD 180), the process for disclosure under § 50-a places the burden of a threshold showing on the party requesting disclosure. (See Civil Rights Law § 50-a [2]; Taran v State of New York, 140 AD2d 429, 430 [2d Dept 1988].)

Here, Defendants have not met the "substantial threshold burden" required in a Federal civil rights action, whether the claim to exemption is based upon § 50-a or the public interest privilege. (See King v Conde, 121 FRD at 190.) Procedurally, Defendants' claim is not supported by the required declaration or affidavit from a responsible official within the Police Department or Civilian Complaint Review Board, explaining, among other things, the specific interests implicated and how they would be injured by disclosure. (See id., at 189.) Substantively, arguments similar to counsel's conclusory statements as to the possible effects of disclosure on the full and free flow of information during disciplinary proceedings and the investigation of civilian complaints (see Affirmation in Opposition, ¶ ¶ 15, 22, 23) have been characterized as "probably often overstated," and "courts should be wary of relying on [them] in restricting discovery." (See King v Conde, 121 FRD at 192-93; see also Mercy v County of Suffolk, 93 FRD 520, 522 [EDNY 1982].)

Defendants' claim to exemption from disclosure is not measurably advanced by the cited exemptions to FOIL or the assertion of a "law enforcement" privilege, which is, in effect, codified in an exemption to FOIL (see Colgate Scaffolding & Equipment Corp. v York Hunter City Services, Inc., 14 AD3d 345, 346 [1st Dept 2005]; In re Department of Investigation of the City of NY, 856 F2d 481, 483-84 [2d Cir 1988].) The FOIL exemptions relate to personal privacy (see Public Officers Law, § 87 [2] [b]), law enforcement purposes (see id., § 87 [2] [e]), and inter-agency or intra-agency materials (see id., § 87 [2] [g].) Even under State law, any privilege based upon these FOIL exemptions "is qualified and must be balanced with the substantial need for the information sought" (see Colgate Scaffolding & Equipment Corp. v York Hunter City Services, Inc., 14 AD3d at 346); and cannot be based upon assertions that are "merely conclusory, with no attempt to specify, with particularity, the basis for [a] refusal to comply with [a] request" for disclosure (see Matter of Katz v Scott, 236 AD2d 259, 259 [1st Dept 1997].)

Since, in any event, Defendants cite to "no specific federal rule" that addresses these claims to privilege, the procedure and test of King v Conde (121 FRD 180) apply (see Finn v City of New York, 4 AD3d at 219.) Defendants fail to make the "substantial threshold showing" that would preclude direct disclosure. (See King v Conde, 121 FRD at 189-90.) [*9]

Defendants' final argument, addressed to "post-date of incident investigations and inquiries into the underlying incident" (see Affirmation in Opposition, ¶ 17), is that the information and records constitute subsequent remedial measures that are neither admissible nor discoverable in a negligence action (see id., ¶ ¶ 17-18, citing, inter alia, Brooks v Southhampton Hospital, 200 AD2d 530, 531 [1st Dept 1994]; Maddox v City of Los Angeles, 792 F2d 1408, 1417 [9TH Cir 1986].) Assuming, however, that some adverse action was taken against one or more of the police officer defendants that would qualify as a remedial measure as to the City, the consequence would be limited to the negligence claim against the City. The information and records would yet be discoverable as to other causes of action asserted against the City and the officers in accordance with the usual disclosure rules. (See id., at 1417-18.)

The Court must note that, even under the more restrictive regimen of Civil Rights Law

§ 50-a, disciplinary and civilian complaint records, both before and after the incident sued upon, have been found subject to disclosure in police misconduct cases. (See Evans v Murphy, 34 AD3d 417, 418 [2d Dept 2006]; Pickering v State of New York, 30 AD3d at 394; Spadaro v Balestri, 237 AD2d 507, 507 [2d Dept 1997]; Flores v City of New York, 207 AD2d 302, 304 [1st Dept 1994]; Green v New York City Housing Authority, 186 AD2d 455, 455 [2d Dept 1990]; Becker v City of New York, 162 AD2d 488, 489-90 [2d Dept 1990].)

All of this, however, is addressed only to any disciplinary proceedings and civilian complaints against Officer Reich, and the co-defendant police officers for whom the City has appeared, P.O. David Lambert and P.O. James Armstrong. At the deposition of Officer Reich, he was also questioned about proceedings and complaints against other officers "involved in the arrest" of Plaintiff. The opinion in King v Conde (121 FRD 180) does not expressly address the files of non-parties.

Under Civil Rights Law § 50-a, before a court may order disclosure of a police officer's records, it "must . . . give interested parties the opportunity to be heard." (See Civil Rights Law

§ 50-a [2]; see also Telesford v Patterson, 27 AD3d 328, 330 [1st Dept 2006].) The non-party police officers have not been given that opportunity, and the Court finds nothing in King v Conde (121 FRD 180) that would require disclosure without such an opportunity. Accordingly, the records disclosed pursuant to this order shall be redacted for the names and other identifying information of any officer not named as a defendant.

The Court notes that King v Conde (121 FRD 180) was decided in 1988, and its applicability in state court proceedings was declared in 1994 (see Svaigsen v City of New York, 203 AD2d 32, 33 [1st Dept 1994].) In 1997, moreover, the Second Department ruled that Civil Rights Law § 50-a could not be a ground for refusal to answer questions at a deposition in an action involving Federal civil rights claims. (See Mann v Alvarez, 242 AD2d at 320.) The Court is hard-pressed, therefore, to understand counsel's direction at a July 2006 deposition not to answer the questions as to disciplinary and civilian complaint proceedings, as well as the telephone calls the Court receives too often during depositions when counsel give similar directions in similar circumstances. Counsel should be aware that, particularly under the new rules, a monetary sanction may be warranted. (See O'Neil v Ho, 28 AD3d at 627.) [*10]

Plaintiff's motion is granted to the extent that:

1.Pursuant to Plaintiff's further notice in accordance with CPLR 3107, Police Officer Brian T. Reich shall appear for a further examination before trial, which shall be held, if Plaintiff elects, within 60 days of the date of this order. At the further examination, Officer Reich shall answer questions concerning his discussions with prosecutors concerning the matters subject to Plaintiff's Complaint, any anger management or stress management program(s) he was instructed or encouraged to attend by the Department, and disciplinary proceedings and civilian complaints against himself or Officers Lambert or Armstrong, which involve[d] an allegation of the use of excessive force. Notice of the further examination shall be given to the District Attorney, Kings County, at the same time it is given to Defendants. Plaintiff may, if he elects, defer the further examination until after he receives the disclosure of disciplinary and civilian complaint records ordered below.

2.Within 60 days of the date of this order, Defendants shall make available to Plaintiff for inspection and copying any records of disciplinary proceedings or civilian complaints against Officers Brian T. Reich, David Lambert, or James Armstrong. If any such record refers to another police officer, Defendants may, instead, provide a copy of the record with the name of the officer and other identifying material redacted.

Should Defendants fail in any respect to timely and fully comply, Plaintiff may seek appropriate sanctions. (See CPLR 3126; Rules of the Chief Administrator, Part 130, 22 NYCRR § 130-1.1 et seq.)

May 11, 2007___________________

Jack M. Battaglia

Justice, Supreme Court