the district court improperly in assessing both the breach of contract and then vacation claims held that those claims failed because he capital legibly did not plead to collateral contract but we did in the complaint we allege that bloomfield the defendants here and he entered into a collateral contract which was collateral to the subscription agreement a memorandum and or ca investment manager of the synergy funds and the agreement by the defendants that it would serve in that role that it was just an agreement the capital would serve as investment advisors and there's no compensation this substance of the alleged collateral contract is different from what the set forth in the subscription agreement a i gather you're saying what's different is that he can't was a party that is there anything else that is the  collateral contract really is that capital would serve in that role and that defendants had agreed to it and that that in part for purposes of pleading your honor that's sufficient to allege there's a clatter of contract here that is and have difficulty understanding how that would be seems to me it would have been in the subscription agreement itself so help me understand this i thought when you're talking about this collateral content contract that's one of the things you consider is this a term that would have been included in the subscription agreement that is one issue that could be considered but here with the point really is that it's not in the contract edi capital here is not a party to the subscription agreement but there is a contemplation and agreement that they would serve in the role as investment advisor and that that is the separate contract which is consistent with the underlying scripture agreement and that's the collateral contract and that is that is played now whether the you know the whether or not that that's sufficient in terms of proof is not a pleading issue and here we remember we're at the pleading stage and we're dealing with the issues of what's been played or what's required here in the condo in the complaint is that there was a collateral contract sufficient with the requirements of cayman islands law  with regard to the promissory estoppel claim that was a space which was played in the alternative the district court focused on the fact that the promises that were between the parties were evidenced in the instance written what was a assignee of the claims and there's no mention of any promises to b m p in the contract that which is sort of there in that case so that that the fact that here the allegation that's not in the complaint which is that we'll let that be the capital ledge that there was a profit motive behind the the actions of the defendants eight s not in the complaint but b there are  finally with regard to the prejudgment attachment claim the just record essentially just held because we didn't plead any of the other allegedly failed to plead the other claims there was no prejudg but as we've set forth in our papers we did satisfy the pleading requires for all over the claims and therefore you know there prejudge attachment claim should should stand as well  was to penalize other questions i will see my time thank you please the court brian sutherland for the apple e's and judge carney asked the right question when your honor asks what are the terms of this alleged collateral contract because they don't appear in this complaint it's impossible to tell what the terms of the alleged oral contract based on the complaint that you have before the court and it's confusing but there are a couple of possibilities one is that which is alleged to paragraph seventy five and eighty two namely the idea that capital agreed to serve as investor manager and in return bloomfield would sign the subscription agreement well if that's the theory then there's no breach because bloomfield did sign the subscription agreement that subscription agreement as my opponent just conceded doesn't include a capital as a party says the same thing in paragraph seventy two seventy five and eighty two the other possible theory on which they might seek to proceed is not a in the complaint but it seems to be what they're claiming is that the oral agreement and the written agreement are exactly the same except that one has any capital as a party and one does not and it's harder it would be hard to imagine a more clear violation of the collateral contract doctrine what that doctrine does is it says well there's an exception to the pro level where you can have an oral agreement and a written agreement so long as the two are completely separate here they're saying the opposite they're saying they're exactly the same and i think their expert witness neil lupton when confronted with the strange theory of there said well that does seem to be what they're saying because that's what he set you'll see this on pages four hundred twelve the four thirteen of the record he said the collateral contract quote essentially mirrors the terms contained within the subscription agreement that's impossible what you need is a collateral contract that means separate that means independent the identity of the parties is something you would expect find in the written agreement therefore they cannot be the subject of an alleged oral agreement is not a question of fact they agree that these written agreements exist this is undisputed and so when they say to the court well let's just push everything aside and think about whether there could be some oral agreement out there that's not the point the point is are they making allegations that bloomfield has violated the terms that are identical to the terms of the written agreement this is not just information that you would expect to find in their written agreement it's actually in the written agreement so they're saying we have this oral agreement that includes all the terms of the written agreement and you violated those terms it's just an improper attempt to  circumvent the cayman island law which provides that went up party like capital is not a party to the written agreement it has no right to enforce the terms of that agreement you'll see that in our experts declaration of page one hundred eighty five  record and the statute to which he refers is at page two hundred twenty one and a final point on this that i'll leave you with you know capital could have made itself a party to this contract if it had wanted to do that it's the investment manager as it says in the complaint it simply chose not to do it it didn't want to have any liability to the investors and it's now trying to make itself a party but it cannot do so in that the face of the complaint shows that the sorriest awful claim fails for exactly the same reasons as just trying to enforce a written agreement to which it is not a party can identify any case in which there is an undisputed written agreement that contains promises to part is especially clear in the cayman islands law when you have a cayman islands contract it is particularly clear that that contract doesn't make any promises to non parties again refer the court to page two hundred eighty one of the record for that proposition i think what you see in their brief is an implicit concession of the point when they cite a case called mendez and they say well couldn't we plead the existence of a written contract but then also in the alternative promissory estoppel in case there is no written contract well the only reason you could have that alternative claim would be if there is no written contract that's the point mendez makes if you do have a written contract you have no promissory estoppel glazers to them to be arguing that part that bluefield in signing it's absurd subscription agreement delegated to the capital all investment be saying that but if they are it's wrong the subscription agreement doesn't make any promises to capital it does disclose that any capital will be the investment manager that's an arrangement between the investment manager and the and the synergy  dismissal the first department's decision in port hall says essentially the same thing that when there is a written contract it doesn't make promises to not parties you know especially under came in law contracts make promises to parties they do not make promises to nonpartizan that's the fundamental proposition and so the contract could refer to someone else it could seem to indicate that another entity will have some role to play it doesn't matter though because nothing in that subscription agreement or the private placement memorandum makes any promises any promises to the capital i hope that when i said that  ok quickly then it just turned to the tort claims my my colleague just mentioned prima facia tor that was particularly easy because we have a new york court of appeals case which is directly on point which is the curia no case and what that case holds is a plaintiff can never never bring a prima facia tort claim based on the institution of civil proceedings while those proceedings are ongoing so that right in the case it is just a matter of new york public policy and the court can dismiss that one at the pleading stage as well and my colleague didn't separately address abuse of process but i'll quickly touch on it there is no abuse of process claim  here for two reasons one capital fails to allege any interference with person or property and to the complaint does show that there is an economic justification for this lawsuit to pressure  proceeding to pressure settlement that doesn't constitute abuse of process as a matter of law and in fact going back to curiosity heriot also holds that commencing civil proceedings never constitutes abuse of process as a matter of law so nothing that happened in the netherlands could constitute abuse of process there was an attachment there but it was attachment of you in g s assets in the complaint concedes that e g capital didn't own u m g or its assets and with respect to the proceedings in the southern just new york there's no allegation of improper use of process and in fact the southern district judge approved the seven hundred eighty two application and granted the motion to compel the production of documents the appropriate time to object or move for sanctions based on what bloomfield with the seventy two application would have been in the southern district of new york and set of bringing the allegations here in a separate lawsuit which again only say that what we've incurred legal fees but don't allege improper use of process in fact the process was used for exactly the purpose that depositions and documents are intended under that statute as the district court held