Doe v. Axelrod ( 1988 )

Kupferman, J. P.

(concurring). I have been vouched into this matter to be the determining factor, and I think both positions are sound.

While I believe that the opinion authored by Justice Milonas will and should ultimately prevail (cf, Bellacosa, J., dissenting in Boreali v Axelrod, 71 NY2d 1, 16), there is sufficient doubt as to the legality of the regulation, as Justice Asch presents it, to affirm granting the preliminary injunction preventing its effectiveness in advance of trial.