(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 *420Asch presents it, to affirm granting the preliminary injunction preventing its effectiveness in advance of trial.