Opinion
13189/03.
Decided December 7, 2005.
Santoriell, DiTomas, Monaco, P.C., Brooklyn, NY, Attorneys for Plaintiff Kelly's.
The Bongiorno Law Firm, Mineola, NY, Attorney for Cousins.
Sciretta Venterina, Staten Island, NY, Attorney for MTA and Saheed.
Strongin Rothman Abrams, LLP, New York, NY, Attorney for Cummins, Inc. Cummins Engine Co.
Haber Haber, LLP, Garden City, NY, Attorney for Louis Joubin.
Gair Gair Conason, Steigman Mackauf, Esqs., New York, NY, Attorney for Yoland Scott.
Nassau County Attorney's Office, Mineola, NY, Attorney for Nassau County.
Foley Lardner, LLP, Yonaton Aronoff, Esq., New York, NY, Attorneys for Defendants Cummins and Orion.
Motion by Defendants MTA, Metropolitan Suburban Bus Authority and Mohamed Shaheed returnable December 6, 2005, seeking a protection Order pursuant to CPLR § 3103 preventing disclosure of the testimony Steven Seleznow and "preventable/non-preventable software has been decided at previous conferences. Mr. Seleznow now has been deposed and the defendants were ordered to turn over all relevant documents concerning the "preventable/non-preventable" software. All counsel will execute any confidentiality agreement.
Motion, pursuant to CPLR § 3103, by Defendants Metropolitan Transportation Authority, Metropolitan Suburban Bus Authority, a/k/a Long Island Bus and Mohamed Shaheed (hereafter collectively referred to as "Defendants MTA-Long Island Bus and Shaheed") returnable October 24, 2005 for a protective order is granted in part and denied in part.
The Defendants MTA-LI Bus and Shaheed are directed to turn over those records indicated below within five (5) days from the date of this Decision and Order, which is being served today by the Court on all counsel through email.
Additional informal and unnoticed requests by various counsel for further discovery and depositions were partially granted from the bench during conferences on December 2, 2005 and on November 21, 2005, and the remainder are Ordered herein.
Furthermore, the Court has considered and incorporated in this Decision and Order the arguments and positions asserted in Court-requested supplemental letters from counsel, which the Court deems to be part of the record herein, together with the transcripts of the November 21, 2005 and December 1, 2005 conferences before the Court. The letters relied upon were the December 2, 2005 letter from Yonaton Aronoff, Esq., (Defendants Cummins and Orion) re: further deposition of the Defendant-Driver Shaheed; the December 5, 2005 letter of Daniel Gair, Esq., (Plaintiff Scott and, by Stipulation, all plaintiffs) re: expert disclosure; the December 5, 2005 letter of Yonaton Aronoff, Esq., (Defendants Cummins and Orion) re: expert disclosure; the December 5, 2005 letter of Marilyn Venterina, Esq., (Defendants MTA-Long Island Bus and Shaheed) re: expert disclosure; and the December 5, 2005 letter of Stephen D. Haber, Esq., (Plaintiff Estate of Joubin) re: expert disclosure.
The Court notes with appreciation the timely submission of these letters from counsel in helping to further focus and narrow the remaining discovery issues.
The within action arises from a bus accident at the Hempstead Transit Center (bus terminal) on February 19, 2003. A Defendant Orion Bus, owned by Defendant County of Nassau, leased to Defendants MTA-Long Island Bus, and driven by Defendant Shaheed, failed to stop, mounted the end curb striking numerous pedestrians, and crashed into the wall of the terminal in Hempstead, New York.
A Public Transportation Safety Board (PTSB) Abbreviated Bus Accident Report dated September 26, 2003 indicates that the Defendant MTA Long Island Bus reviewed a report of the accident on February 19, 2003, and found the accident to be "preventable". The Defendant MTA-Long Island Bus' driver, Defendant Mohamed Shaheed, thereafter was either dismissed or fired. The PTSB report notes that a potential failure of the Electronic Throttle Control System "could have occurred" and "caused full, unanticipated engine acceleration", but that had it done so, ". . . the bus driver should have been able to stop the bus in time to prevent the collision with the pedestrians". The PTSB concluded that "the most probable cause of the accident was the bus driver's failure to maintain control of the bus."
Admissibility of the conclusions of the Public Traffic Safety Board report is left exclusively to the discretion of the trial court.
Defendant Shaheed thereafter proceeded to employment arbitration regarding his dismissal and the arbitrator ruled that there was no evidence of driver error and directed Defendant Shaheed's return to work at Defendant MTA-Long Island Bus.
Admissibility of the arbitrator's report is left exclusively to the discretion of the trial court.
DEFENDANTS MTA-LONG ISLAND BUS AND SHAHEEDS' ACCIDENT REPORTS
Plaintiffs seek: (1) evidence concerning the accident report prepared by Long Island Bus which was sent to chambers for in camera review as part of Shaheed's personnel file; (2) evidence taken by the arbitrator, as well as the arbitrator's file; (3) any descriptions of the accident Shaheed may have given to ambulance personnel while being escorted to the hospital; (4) statements made by Defendant Shaheed to hospital personnel at the emergency room; (5) Defendant Shaheed's application for worker's compensation benefits arising from this accident; and (6) Statements made by Defendant Shaheed to the Defendant MTA-Long Island Bus' consulting psychologist about what happened in the accident.
Defendants MTA-Long Island Bus and Shaheed now seek a protective order, claiming that plaintiffs have not demonstrated relevance or special circumstances, and that personnel files, hospital records, ambulance records, arbitration records, and psychological are not discoverable. They also contend that plaintiffs have not demonstrated any deficiencies in the depositions already taken. Hence, all plaintiffs and co-defendants are not entitled to further depositions.
In general, a party must give "full disclosure" of all matter "material and necessary" in the prosecution of an action, and a non-party "upon notice stating the circumstances or reasons such disclosure is sought or required" (CPLR 3101[a][1], [4]). What is material and necessary is in the "sound discretion" of the trial court and includes "any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason" ( Andon ex rel. Andon v. 302-304 Mott Street Assocs., 94 NY2d 740, 746, quoting Allen v. Crowell-Collier Publ. Co., 21 NY2d 403, 406). The burden of proof to show claimed privilege is on the party seeking to establish the privilege ( Carlo v. Queens Transit Corp., 76 AD2d 824 [2nd Dept 1980]). Counsel for the Defendants MTA-Long Island bus and Shaheed will immediately serve all other counsel with copies of the following:
A. DISCIPLINARY ACTION STEP 1 [No. 6288] — (2 pages)
B. DISCIPLINARY ACTION STEP 2 [6288] — (1 page), with copy attached of Arbitrator Shelly S. Friedman's May 28, 2003 Arbitration Decision (2 pages).
C. COMMAND CENTER UNUSUAL OCCURRENCE REPORT — (1 page)
These three reports have been reviewed in camera and contain no privileged material. Information contained in each of the above is relevant and material.
D. DISCIPLINARY ACTION STEP 3 REPORT- (not provided for in camera review) will be served on all counsel immediately.
Admissibility of these reports at trial is reserved for the justice assigned thereat.
"PRIVILEGED" STATEMENTS OF DEFENDANT SHAHEED
All of Defendant Shaheed's statements concerning the happening of the accident are relevant to a determination as to whether he may have been negligent, and are thus discoverable unless subject to a privilege, such as the attorney client privilege, or material prepared for litigation ( see Carlo v. Queens Transit Corp., 76 AD2d 824 [2nd Dept 1980], supra). Any statement concerning the happening of the accident which is "intended for purposes beyond that of litigation, e.g., as efficiency reports, or disciplinary or personnel records" serves a multi-purpose and does not warrant immunity from disclosure ( supra).
Indeed, CPLR 3101 (g) explicitly provides that "there shall be full disclosure of any written report of an accident prepared in the regular course of business operations or practices of any person, firm, corporation, association or other public or private entity, unless prepared by a police or peace officer for a criminal investigation or prosecution and disclosure would interfere with a criminal investigation or prosecution".
Defendants' MTA-Long Island Bus and Shaheed's reliance on certain authority which holds that personnel files are not discoverable in the absence of a claim for negligent hiring is misplaced. Such authority holds that an employee's "prior acts of carelessness or incompetence" are not relevant except in a negligent hiring or retention claim, and therefore the personnel records were not discoverable ( Stevens v. Metropolitan Suburban Bus Authority, 117 AD2d 733 [2nd Dept 1986]).
In fact, such authority suggests that the file would be discoverable, if, as here, it was "relevant to the issues presented" ( supra). All statements in Defendants MTA-Long Island Bus and Shaheed's "purported" personnel file of Defendant Shaheed, or in the accident report taken by or prepared by Defendant MTA-Long Island Bus regarding the happening of the accident at bar, are discoverable and shall be produced forthwith.
With respect to Shaheed's application for worker's compensation benefits, Defendants MTA-Long Island Bus and Shaheed have not provided any authority to show that any information concerning the facts of the accident provided in such application is privileged. Although defendants attempt to rely upon the provisions of Public Officers Law § 96 which prohibits disclosure of certain public employee information and records, they rightfully acknowledge that this court may direct disclosure. Nevertheless, they suggest that the salutary purposes of the statute to protect defendant Shaheed's right of privacy should be respected.
The Court is not directing the disclosure of any "personal" or "medical" information which is defined in the Public Officer's Law § 89(2)(b), to include:
(b) An unwarranted invasion of personal privacy includes, but shall not be limited to:
i. disclosure of employment, medical or credit histories or personal references of applicants for employment;
ii. disclosure of items involving the medical or personal records of a client or patient in a medical facility;
iii. sale or release of lists of names and addresses if such lists would be used for commercial or fund-raising purposes;
iv. disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintaining it; or
v. disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency; or
vi. information of a personal nature contained in a workers' compensation record, except as provided by section one hundred ten-a of the workers' compensation law.
It should be noted that the court has conducted a detailed and exhaustive review of Defendant Shaheed's (1) ambulance record; (2) hospital emergency room records; (3) purported Defendant MTA-Long Island Bus Worker's Compensation file concerning Defendant Shaheed; and (4) two consulting psychologist's reports of Dr. Benjamin Hirsch (ie. Defendant Shaheed was sent by employer Defendant MTA-Long Island Bus for post-accident assessment prior to resuming his driving duties).
Accordingly, a redacted copy of the worker's compensation application, which shall show only Shaheed's name and statements concerning how the accident occurred, shall be produced.
A statement attributed to the Defendant Shaheed from the MTA-Long Island Bus' psychologists's report is relevant to the facts of the accident. Nothing else is discoverable therein.
The redacted hospital emergency room records will be produced, only to include the identifying institution, the Defendant Shaheed's name, and the specific statement concerning how the accident occurred.
They shall be served within five (5) days herefrom. Defendants MTA-Long Island Bus and Shaheed's counsel is to immediately, upon receipt of this Decison and Order, call chambers to confirm that the proposed redacted copies reflect the statements ordered to be disclosed herein. Thereafter, counsel will send the redacted copies to all other counsel.
The Defendant Shaheed has given multiple statements concerning the circumstances of the accident and how it occurred. These are open to being read as either consistent or inconsistent.
For example, at the scene he told the investigating Nassau County police officer that:
". . . accelerator struck (sic) and brakes wouldn't stop bus".
Later, at the Nassau University Medical Center, he told another police officer:
". . . I was traveling about 5 mph [when] I made a right into slot # 32. When I pressed down on the brakes the bus did not stop. I heard the engine racing. I kept my foot pressed all of the way down on the brake but the bus still did not stop. . . . I crashed into the glass wall."
These versions were included in signed statements submitted to the Nasau County Police Department which have already been disclosed to all counsel in prior discovery.
At his deposition, Defendant Shaheed testified that he was about four or five feet from the curb when he heard a "loud noise" from the engine. He continued:
". . . all of a sudden [the bus] jumped the curb, and when it jumped the curb I went this way. I went . . . [t]o the right. The fare box is right here, and I hit my shoulder on the fare box and I was trying to get back to my seat to press on the brake but I didn't have enough chance. By this time, things just happened in a few seconds, three or four seconds, so by the time I get back to press on the brake, because my foot went off the brake at that time when I hit the curb — when I hit the curb I moved, and so my foot was right on the brake, but I couldn't press it because I was like this, so by the time I tried to get back, like this, I already hit the wall in there."
It is clear from the foregoing that a jury might consider, inter alia, that the possible causes of the accident were mechanical failure, driver error, or a combination of both. Any evidence which sheds light on how the accident occurred is patently relevant to a determination of whether there was any negligence in this accident.
The Court, in reversing numerous prior rulings from the bench, is herein releasing the four additional statements of or attributed to Defendant Shaheed related to how the accident occurred. The law is manifestly clear that they all fully discoverable concerning the negligence allegations herein. Reviewed together with the above-mentioned statements and deposition testimony, it could be argued that they may be inconsistent and create clear questions of fact which bear upon considerations of liability.
As to the disclosure of otherwise-privileged records (ie. ambulance records, hospital emergency room records, Workers Compensation benefits application), the Court is not releasing Defendant Shaheed's "medical complaints or conditions" related thereto, except a statement concerning how the accident happened which is included in the Defendant's MTA-Long Island Bus' consulting psychologist's March 4, 2003 report.
Indeed, Defendant Shaheed's counsel has formally and specifically represented to the Court that no defense of medical causation, amnesia or other impairment of Defendant Shaheed will be asserted on his behalf at trial as affecting or mitigating any causation, negligence or culpability.
Notwithstanding this representation, the Court has carefully reviewed all relevant records in camera and finds no additional entries whatsoever which would, in any event, support such positions if asserted. Thus, the Court finds that the actual post-accident " medical complaints" (emphasis added) and treatment records herein of defendant Shaheed remain privileged, non-discoverable and irrelevant to the issues herein. However, statements he made as to how the accident occurred are being disclosed herein.
Whether the records from which they derive are subpoenable at trial is left to the discretion of the trial court.
The four additional statements are:
A. Long Island Bus "Command Center Unusual Occurrence Report" Dated 2/19/02, 1:50 p.m.:
"Operator Saheed claims mechanical failure"
B. NUMC, 2201 Hempstead Turnpike, E. Meadow, New York, Department of Emergency Medicine, 3:00 p.m. February 19, 2003:
". . . Bus driver — had lap belt on — entering the bus terminal he found his brakes did not work; hit a few people before hitting the wall to stop . . ."
C. Preliminary report from Psychologist Benjamin Hirsch, Ph.D., of Psychological Resources, P.C., 320 Franklin Avenue, Franklin Square, NY 11010, dated March 4, 2003:
". . . I drive the N32. I was going to start and I pulled the bus into the slot. I was going about 5 m.p.h. when all of a the transmission must have stuck. It jumped from first to third gear. It felt like the accelerator was stuck. I don't know what happened but the engine made a sudden jump. I tried very hard to brake but the bus just wouldn't stop."
D. Long Island Bus Worker's Compensation Report of Injury "WC-01352" dated February 24, 2003 and signed by Mohamed Shaheed.
Describe in detail what you were doing when injured:
"I was pulling into the terminal"
Why did the accident occur?:
"Bus went out of control. I tried to stop the bus buy [sic] preasing [sic] on the brak [sic] — bus would not stop and went into the terminal."
E. Prehospital Care Report — MVAC Ambulance Record:
A FURTHER REVIEW BY THE COURT OF THIS RECORD SHOWS NO STATEMENTS BY DEFENDANT MOHAMED SHAHEED REGARDING THE CAUSE OF THE ACCIDENT.ARBITRATOR'S FILE
Defendants MTA-Long Island Bus and Shaheed shall also produce all material demanded with respect to the arbitration proceeding. Independently, the arbitrator shall produce his file for an in camera reveiw, as it has been held,
"There is no confidentiality privilege precluding disclosure of the material requested as the parties to the arbitration proceeding governed by the Rules of the American Arbitration Association are, in the absence of a confidentiality provision, not prohibited from disclosing documents generated or exchanged during the arbitration and since evidentiary material at an arbitration proceeding is not immune from disclosure,"
( Galleon Syndicate Corp. v. Pan Atlantic Group, 223 AD2d 510, 511 [1st Dept. 1996] [emphasis supplied]).
Defendants do not contend that the parties entered into a confidentiality provision regarding the arbitration proceeding. Thus, the records are subject to disclosure as they are relevant to issues of negligence in this proceeding. Indeed, defendant MTA-Long Island Bus does not contend driver error in this action, as it presumably did in the arbitration proceeding, which provides an additional basis for disclosure of the arbitration files ( see, Kamyr v. Combustion Engineering, 161 AD2d 233 [1st Dept 1990] ["Evidentiary material at an arbitration proceeding is not immune from disclosure * * * There is an indication in the record that defendants may be taking positions in the arbitration proceeding inconsistent with the position they are jointly asserting in defense of the instant litigation. We think that possibility' is enough to justify disclosure of the requested documents"]). These considerations are identical to the facts at bar. The Defendant Shaheed was fired by his employer, the Defendant MTA-Long Island Bus, prior to being reinstated by the arbitrator.
There is an indication that notes of Shaheed's statements were taken by the arbitrator at the arbitration. Thus, the arbitrator's records may well contain evidence which is elsewhere unavailable.
Accordingly, the availability of certain documents from other sources which were before the arbitrator from other parties is not a bar to their disclosure. As noted, pursuant to CPLR 3101(a)(4), disclosure from a non-party is permissible "upon notice stating the circumstances or reasons such disclosure is sought or required."
Inasmuch as Plaintiff Scott's counsel, Daniel A. Gair, Esq., gave oral notice to the arbitrator the day before the "records only" subpoena was served, and explained the need for the file, the requirements of the statute are deemed satisfied. Accordingly, non-party Arbitrator Shelly Friedman's file shall be produced to chambers only within ten (10) days, including notes made of Shaheed's statements concerning the accident, if any.
In the alternative to appearing for deposition, an affidavit from Arbitrator Shelly Friedman, certifying that the copy of his file is complete and detailing the documents being produced to the Court for its in camera review, will satisfy the Court. If the arbitrator has no notes of his own which he took concerning any statements made by Defendant Shaheed at the arbitration, or submitted prior thereto on Defendant Shaheed's behalf, then those factors should be addressed in the affidavit. However any such notes or submissions (either of the arbitrator or of Defendant Shaheed) shall be appended thereto.
After in camera review, the Court will redact any material deemed not releasable and will thereafter furnish copies to all counsel.
FURTHER DEPOSITIONS REQUESTED BY PLAINTIFF JOUBIN AND BY DEFENDANTS CUMMINS AND ORION
Turning to the requests of Plaintiff Estate of Louis Joubin and of Defendants Cummins and Orion for further depositions, said plaintiff names Lamar Kelly, Charles Maccio, William Norwich and Eugene Griffith as witnesses with information necessary to the prosecution of this action, as well as two unnamed witnesses, one being a Defendant MTA-Long Island Bus employee who tested the subject bus for defects, and the other being his supervisor. [Refer to the transcript of the November 21, 2005 Court conference].
A party seeking further depositions must make a showing that the individuals produced by a defendant and already deposed "possessed insufficient knowledge or . . . the testimony was otherwise inadequate" and that "there is a substantial likelihood that the persons sought for depositions possess information which is material and necessary to the prosecution of the case" ( Carter v. New York City Bd. of Educ., 225 AD2d 512 [2nd Dept 1996]).
That showing has been partially demonstrated in the case at bar.
However, the Court orders that the Defendants MTA-Long Island Bus and Shaheed shall produce, at this time, only William Norwich, Senior Vice President of Operations for Long Island Bus on the date of the accident, together with all original records, reports and documents he produced, received, wrote, caused to be generated, and/or reviewed relevant to his duties in overseeing the accident scene and in thereafter investigating the circumstances of the accident.
On November 14, 2005, the deposition of Henry Eulo, the Defendant MTA-Long Island Bus' union delegate, who successfully represented the Defendant Shaheed at his employment arbitration, was conducted. He testified that Mr. Norwich directed all employees at the accident scene. As such, Mr. Norwich has material and relevant information.
Furthermore, Mr. Gabriel, the depot manager in Uniondale, testified that Mr. Norwich directed Defendant MTA-Long Island Bus employee operations at the scene and provided instruction to Mr. Gabriel.
Mr. Norwich will also produce at deposition all original documents prepared by any employee of the Defendants MTA-Long Island Bus and Shaheed which relate to the post-accident termination of the Defendant Shaheed's employment and all records related to the three-stage internal disciplinary proceedings. (This was subsequently reversed by Arbitrator Friedman's Decision).
Mr. Norwich may well have additional knowledge of the circumstances surrounding the long-missing videotapes of the accident, which were taken by fixed cameras located on or near the roof of the Hempstead Terminal building. Their existence was first identified at a Court conference in the early Summer of 2005 and they were Ordered to be produced forthwith. They first became available for review at the November 14, 2005 Court conference and were not able to be seen on the courtroom television due to technical problems with the tapes.
Finally, Mr. Norwich may have information relevant to the testimony of Defendant MTA-Long Island Bus eyewitness-driver Seleznow, who at his deposition said that he gave a post-accident statement and drew a diagram for an MTA-Long Island Bus claims representative.
Neither that diagram nor that statement have been produced, although Defendants MTA-Long Island Bus and Shaheed's counsel has recently produced an affidavit of the claims representative that no such documents were ever provided to her. This affidavit was in compliance with the Court's Order at the November 21, 2005 conference.
Compliance with this branch of the order is to be broadly construed by the Defendants MTA-Long Island Bus and their counsel.
Although not fully discussed at the December 1, 2005 conference, the Court permits Defendant MTA-Long Island Bus' counsel to address issues of attorney-client and/or specific work product privileges by delivering to chambers within five (5) days herefrom any such "privileged" records in two formats, one unredacted and one with proposed redactions. (The Court notes, however, that prior discovery disclosures, and several counsels' representations related thereto, have led the Court to believe that the internal administrative decision to fire the Defendant-Driver Shaheed was made almost immediately after the accident. This was well before any Notices of Claim were filed and litigation was commenced.)
The Court reminds all counsel that at any deposition resulting from this Decision and Order, no witness shall ever be directed not to answer a question. The Court remains available for immediate rulings concerning issues of attorney-client and work product privilege. All other objections are preserved for rulings by the justice assigned for trial. No interference with questioning, whatsoever, is to take place by any counsel. All documents produced will be properly marked for identification and copies will be sent forthwith to all counsel by the attorney whose client was deposed.
The Court has determined that no additional party depositions are necessary at this time, except that of Defendants MTA-Long Island Bus and Shaheed employee William Norwich. [This determination is based, in part, upon the December 5, 2005 letter of Yonaton Aronoff, Esq., (Defendants Orion and Cummins) and oral stipulation of all plaintiffs counsel and Catherine N. Gray, Esq., (Defendant County of Nassau) at the December 1, 2005 conference].
This deposition will take place no later than December 15, 2005 at Supreme Court, Nassau County at 10:00 a.m.
DEFENDANTS ORION AND CUMMINS RESPONSE TO DEFENDANT MTA-LONG ISLAND BUS AND SHAHEEDS' REQUEST FOR INTERROGATORIES.
As stipulated to at the December 1, 2005 conference, the Defendants Orion and Cummins will serve full, complete and thorough replies to the Demands for Interrogatories within ten(10) days herefrom, together with all relevant attachments.
All counsel will execute the Confidentiality Agreement, if not already so signed.
DEFENDANTS ORION AND CUMMINS RESPONSE TO DEFENDANT COUNTY OF NASSAU'S DEMAND FOR A BILL OF PARTICULARS
The Defendants Orion and Cummins will furnish a fully compliant Bill of particulars within ten (10) days herefrom, which will attach all relevant exhibits.
PARTIES' EXPERT WITNESS DISCLOSURE
Concerning expert witness disclosure, the Court will not impose a stricter requirement than CPLR § 3101(d).
However, counsel are reminded that the current delay between Certification and trial is less than six months in Nassau County Supreme Court.
Furthermore, Defendants Orion and Cumins and Defendants MTA-Long Island Bus are expected to fully comply with all outstanding discovery demands immediately, and require no further expenditure of the Court's time in unnecessary motion practice.
Finally, the Court reminds all counsel that scrupulous, continuing adherence to the civility and collegiality recommendations set forth in the renowned Craco Commission Report is expected at all times. [Committee on the Profession and the Courts, Final Report to the Chief Judge 1, 2 (November, 1995)].
The court notes that this case has been the subject of twenty-two discovery conferences since October 24, 2003. All of these have required the use of a courtroom and court reporter. This case is significantly beyond its Standards and Goals and it will indeed be certified on or before December 22, 2005.
All discovery is to be completed as ordered, without exception, unless such delay is specifically pre-approved by this Court, or as otherwise modified or stayed by Order of a Justice of the Appellate Decision, Second Department.
This shall constitute the Decision and Order of this Court.