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Undercover police officers should be allowed to testify anonymously in a nuisance lawsuit against a Manhattan nightclub accused of harboring an active drug scene, an appeals court ruled yesterday. A unanimous panel of the Appellate Division, First Department, found that New York City, which is bringing the suit, had established a reasonable concern that the officers would risk their safety if they testified in open court. According to the city, the nightclub, Club Exit, is rife with illegal narcotics activity. Last year, city officials filed a nuisance abatement action against the club in an effort to close it down. In May, the city, represented by attorneys from the Police Department, asked Acting Supreme Court Justice Marilyn Shafer to allow undercover officers to testify from behind a screen, while wearing a disguise or while facing away from the courtroom audience. Justice Shafer turned down the request, writing in a brief opinion that the city had not, “other than in conclusory statements, established that the witnesses’ safety will be compromised by an open courtroom.” Yesterday, however, the First Department said in City of New York v. Three Good Fellows Inc., 3137N, that the city had established a “reasonable concern for the safety and continued effectiveness of the officers in the event their identities are exposed as a result of their testimony.” The court ordered Justice Shafer to determine what measures, “short of closing the courtroom,” might be employed to permit the officers, who are involved in ongoing investigations, to testify without revealing their identities. Officials from the Corporation Counsel’s Office, which handled the appeal, said the ruling would jump-start the abatement action and could prove important in other actions against nightclubs where testimony was needed from undercover officers. “The considerations are the same here as in a criminal case,” said Norman Corenthal, senior counsel in the office’s Appeals Division and the attorney who argued the case. After Justice Shafer’s ruling, he said, “the proceeding was held in abeyance.” Gabriel Taussig, chief of the office’s Administrative Law Division, said the Police Department would seek to shut down the club once the case returned to Justice Shafer “because of the numerous instances of drug sales at the establishment.” Randye F. Bernfeld, who represented the club, was unavailable for comment. Last weekend, federal prosecutors indicted executives of another nightclub, Sound Factory, that has been accused of openly accepting drug users and sellers. The city tried last year to shut down that club with an abatement action, but it failed to convince a Manhattan judge that the club should be closed. Justices Richard T. Andrias, Milton L. Williams, Alfred D. Lerner, David Friedman and George D. Marlow concurred on the ruling.

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