consultant but for all purposes and this hasn't been part of the summary judgment motion but for all purposes he was the functional equivalent of an employee barbara paid his health insurance marlboro paid for his sends mr levey a e mail attaching among other things three lots from christie's auction that's coming up for the plates mr vars plates right mr apparently again because later that same day the next thing we see is e mail traffic between mr lay and mr cook tuesday's levey apparently reaches out to mr cook responds so these three more ceramics are coming up at a different auction and then the next time the written record picks up is the report in february toward the end of february from m levey saying here's the report i went and i talked to mr chu many times about the novara project one thing leading to another i get the copy of his contract and i read it and lo and behold i a flaw and we can get into the word flaw and exactly what that means i find a flaw and by the way i've now referred him to a lawyer and that lawyer is telling me that he can get back all or half of choose writes in the ceramics i would say there is that evidence along with the other circumstantial evidence in this case allows a jury do infer that mr  talks to a third party encourages that third party for his own its own benefit to break a contract with the competitors rivals those are the facts of martha stewart case we cited there the facts of the maya angelou case these ceramic plates and in in that context i should also point out at the time when that contract was made mr chu was a somewhat obscure artist now of course his painting s for ten million and up each but at the time he was an obscure artist so everything goes very well with that contract for three years right up until right up until the point when mr levey learns of the east to have many discussions with mr chu about the competitors contract and immediately after these discussions what happens having showing the plates himself at a museum in brussels having participated  setting prices for the plates of the at a gallery in paris having posed with the plates for use by mr navarro in a selling catalogue now all of a sudden and immediately following those discussions choo wants to cut navarro out of the contract so he can sell the plates to another client who he believes would buy the whole thing a cease and desist letter is sent demanding that all the plates be returned and production of additional plates cease and then eventually the worst thing of all that can happen in the art world happens which is a public statement from the artist himself that the works that my client paid for invested in was getting ready to promote were fakes meaning i'm sure all of you are familiar with the recently argued eventually that was sold for four con context that painting salvatore monday sold for four hundred fifty million dollars in the past year it was bought before it was attributed to leonardo da vinci or before it was broadly attributed to leonardo da vinci for there's the calls back to the marlborough office in new york now and again in the context of the whole thing is the will that be sufficient circumstantial evidence i'm not entirely going to die on that particular hill  i will say however is that doesn't matter and the reason it doesn't matter is the but for causation concept that my adversaries dismiss as red herring but is in fact is the key in this goes back to that twenty four seven records decision from this very court which is you don't have to be you don't have to know specifically how the contract counterpart the contract party is going to breach all you have to do is be there at the beginning and sit and be the one who flipped the contract counterparty from being obeying his or her or its contractual obligation to wanting to turn against them those are the exact facts of what you're saying is that it is analogous perhaps perfectly perhaps closely to a sufficiency of the evidence kind of argument it is in a criminal conspiracy case you're saying that at the motive certainly reason to find that he had the means to z he had the opportunity for sure and there was  it is possible on the evidence to infer the existence of an agreement to interfere with your client's contract and once that happens whatever one of the coconspirators does in furtherance of the general objective to which rule of the conspirators or parties has the responsibility of each and every one of them as a matter of law right your are that's exactly right and i would just say you know it's it's all roads lead to rome kind of argument works under that way of looking at it but it also works under the twenty four seven records point in the guard life point which is simply the concept of but for causation as your honor i was on a panel in a unfortunately was an uncited cases or an unpublished case michelle palmieri models case which involved tortious interference and you observed exactly this very point which is the standard for this particular element of tortious interference that we're dealing with is simply can a jury conclude that but for but for the interference whatever it was of the defendant the the contract party would have continued performing its obligations that's the essential standard we don't mr levey mr could do zis didn't even have to contemplate that shoe or in shoes name it would eventually be denied that he had authorized these plates they didn't need to know that at all under the but for rule nevertheless as we point out extensively in our brief they did and in fact they're on the phone at the critical time set they set in motion a course of events in your view the object of which was to get the business away from navarro and get it for themselves and whatever serve that end they're responsible for that's precisely right a court properly granted summary judgment and intent an element that plaintiff's counsel wishes to avoid plaintiffs failed to provide any significant probative evidence that defendants intentionally intended to induce mr chu to engage in any of the alleged bad faith acts from a very large record all the plaintiffs have more suspicions distorted testimony and record sites that don't stand for the underlying proposition the ten and if i understood counsel correctly he's pointing among other things evidence sequence of phone calls and i think also  e timing with respect to the letter that's found in your client's files i understand why don't you tell us why if you'd post favorably to the plaintiffs has it must be on on summary judgment that canted made an inference that they knew about the scheme and intend to the scheme to breach and intended for it to go forward what i'm saying your honor is there is no meta that's simply window dressing i have really no explanation as to why nor my client why it's there it could have been collected in the course of gathering information for this litigation we don't deny that e chew and want a favorable inference you would have had to have a deuced f it otherwise i mean i know i pulled it out but it's put together with the fact that persons associated with your their friends therefore the unlike the other case where telephone records do show some relevance because there was no other reason for the telephone call or said talk to each other's mr bor dunn was good to this is lawyer they they had many many matters involved could to this any vonne were now only friends and they were doing things for marlboro's gallery there was every reason for them to talk and making the inference that it had anything to do with the pla is pure speculation but also your honor even if there was a cease and desist draft that was found in marlborough's files it only pertains to the cease and desist letter you have to have intent that the defendants sought to induce both alleged breach breaches the breach of a non disclosure and a breach of an exclusively clause i do want to turn your honour's because i think a very strong argument and we can get beyond the weeds of what mr walton thinks are is evidence we think is just speculation is the issue of statute of limitations plaintiff's cause of action for tortious interference accrued no later district court and and clearly this court can determine this it's a matter of law that this this court can make a determination on the statute of limitations plaintiffs argue that the french lawsuit wasn't breach to avoid to avoid the statue of limitation of the they allege that the french lawsuit wasn't a breach and didn't cause them harm but this directly contradicts their pleadings exhibit a plaintiff's amended complaint which states defendants intentionally interfered with the production agreement and plaintiffs rights and expected expectations there under by quote acting to void the production agreement through a frivolous lawsuit offensively brought on behalf of c t c it continues by these actions defendants have caused a breach of the production agreement and cause plaintiffs substantial damage second to avoid the time bar plaintiffs contend that the cease and desist letter and french lawsuit on the one hand were independent from the later letter of the j d at the christie's eight e mail were all part of one single campaign paragraph thirty three of the original complaint margot embarked on a systematic campaign in essence to erase the place of existence  two and forty nine of the original complaint calling the christie's email njt at steps in the campaign paragraph fifty four of the amended complaint describing the bad faith acts as taken in the course of one campaign do i understand you correctly that i t's your position that if there was a campaign to induce greed the course of action accrues at the first moment when something occurs that gives rise to damage that is actionable and that if that's prior to the limitations period then everything that comes after that even as late as three days before the filing a complaint is barred absolutely your honor actually made that point in chevron v danziger ok where you i hope you read all five hundred pages no i read i read the dangerous i read the important one for this case in that case you expressed that tortious interference with contract is not continuing tort meaning the statute of limitations accrues upon injury from the first breach regardless of the fact that the contract may be continuing and that there are subsequent breaches for example in anjou goldberg  case we cited the third department did not dismiss a claim for misappropriation of trade secrets because misappropriation can be a continuing tort but it did dismiss the tortious interference with contract claim tortious interference is not a continuing toward t r g viet nam showoff another case we cite the court held that tortious interference is not a continuing tort like nuisance or continuing trespass and found for tortious interference claims they run into a i need obstacle which is no new york court has adopted that position plaintiffs cite highlight products of the american home products they heavily rely on this is a seventh circuit case applying illinois from one thousand nine hundred three but that doesn't represent new new york law one other point why should we reach out to decide this when the district court didn't deal with it understood and if the answer is because we have the power yes i understand that but why should we do it i think it's a matter they can be easily addressed without any facts can be addressed simply from the admissions and concessions here in the new york law that i cited including your honour's case it it's not easy it's just an efficiency issue it shouldn't go down for remained it to the district court on on twelve twelve b six motion for other reasons failure to seat a claim and it included all the federal cause of action i just want to mention one more thing your honour's it's not a classic case because plaintiffs can't show a breach the allege limitations they can pick their poison but they've alleged the chu engaged in no breach in contract conduct plaintiffs now allege that mr chu acted through board done and mr tewson evo that can be imputed to mr chu the fatal defect with this is that those supposed agents must be under choose control and here plaintiffs have contended the exact opposite let me just read two paragraphs or three pa not from chu but from could to this the more borough consultant and in plaintiff's motion in support of the amended complaint the state board done any van were acting for financial gain as agents and under the direction and control of more bro we know that non parties to a contract can't reach a contract here there's no allegation or no evidence that  mr chu acting in the scope of their agencies and play just can't fall back on apparent authority because there's no evidence that shoe communicated to any third party that board done or true had the authority to stop a sale at christ this is the second alternative grounds correctly the district court only dismissed on the basis of intent because everything all the evidence was simply speculation upon speculation assumption  complaint as the way that mr rosberg are described it and you know the only way this sort of misreading of the complaint can have any probative value in this case is if it were somehow a judicial admission but it's not a traditional admission and nobody knows better than mr ross berger that it's not a judicial admission mr rosberg or at mr navarro's deposition asked him point blank did the french law suit breach the production our a reply brief we mentioned spin app and monex so in an on the chevron case that too was a material breach i mean the law is not very complicated here in all the cases where new york new york courts talk about a whether tortious interference is a continuing tort those are all cases where the first breach absolutely destroys any value or expectations in the contract in the chevron case in particular that was a release that ecuador gave to texaco ecuador then as it passed a law that gave individuals private rights of action to sue texaco that was a breach that campoli destroyed any further expectations texaco could have had that it would be protected from liability the very thing that they bargained for and all the other cases are the same let me briefly clear up one thing mr borden testified at his deposition that he was not at the critical period mr coo two zs lawyer at various points had other times he may have been but he was clear as a bill that he was not mr confuses lawyer during the period where the phone records cover now the final point intent which is which mr oscar says we don't mention let me give you intent the intent when mr could start these discussions with  mr chu they were started by moral growth those discussions they and they were started at a time when marlboro had in effect conditioned its willingness to represent mr chew on on being mr choose main dealer they were started exactly at the time when marlboro was using its influence over mr chu to get another dealer out of what mr could tuesday's in his private e mails to m referred to as quote unquote as the race and in those discussions we know from just that one the email in those discussions we know that mr tuesdays like hallmark in the maya angelou case and like j c penney in the martha stewart case was scouring mr choose contract with mr navarro looking for quote unquote flaws which he then successfully found and finally if you needed any more circumstantial evidence that they intended to do exactly what they did mr could do zis when asked about this at his deposition testified in the most check be very charitable and say was he testified is they simply let me give you one example which is just simply what the point where he testified i have asked him and were you aware again before getting the phone call on this message left on the machine were you aware of the kinds of projects he was involved in mr no no i didn't follow his career no no referring to mr navarro so were you aware that he had a contract with mr chu answer he had a contract with mr chu i don't know now that is the person who wrote the e mail saying he had talked to mr too many times about this very contract and had read the contract had found a flaw in it and subsequently sat in on attorney client meetings between the two family and their