w on a boat and we're here today because there was a decision made on december twenty sixth two thousand and seventeen in the federal district court and the issue before the court is whether a forty and it was a crucial factor that has to be emphasizes that the owner balkans had basically requested all information in information of this warrantless search in two thousand and twelve they did not receive this information till two thousand and fourteen in the city of new york has never proffered any sort of evidence that resulted in the conditions or an emergency declaration in this particular matter so on the dating question which in the house was in the house already basically destroyed by the contractor your honor the is not with alleged it is alleged that but what is crucial is to note that on the deed in question there's a nine foot fence a perimeter that surrounding the property that cannot be seen in plain view and what actually happened was the city of new york actually has exact measurements of the property as well as the destruction of the property or allegations of the destruction of the property that is not even possible with a nine feet fence surrounding the entire property why was there i take and i'm for defense was there to prevent children from playing there are getting and it's a guideline for the new york city new york city's buildings department and terms of as a safety safety site for the construction and requires that you actually have a barricade so from a street level from a visibility level i'm pretty tall that fences is above this level so how would someone be able to peer in the back of their residence and actually see where the previous existing building was was constructed and where this new foundation was laid because really what we're talking about is the destruction of the property and in their report this is very this is very crucial it's the emergency report unit that actually came out to the property the federal district court judge did not cite that if they're going to issue a new building or to say that it's a building that means that you have to demolish the whole structure they also did not take into account that how would they be able to state that there's an emergency it's an emergency report they never said that there was an emergency complaint they never cited whether or not the deputy commissioner or the commissioner was supposed to be balkans wrote within his own pro se litigation the root of the problem he actually stated other things your honor he amended his complaint to be sickly talk about this illegal trespass he brought that information forward and the district court never reviewed whether or not an illegal entry occurred which we know that under a camaro versus municipal court three eighty seven us five to three that you cannot have  warrantless administrative search where there is no emergency situation or exit circumstance and that is exactly what occurred in this particular circumstance is here and danger that's going to collapse that's an exigent circumstance no because at remember in plain view you have a nine foot fence and no one can see anything and there is no report that was listed where the building the emergency report unit and specter len actually provided why what was the basis that he was there and what was the basis that would allow him to access the property without a warrant it went above and beyond and the understanding of it is routinely when when the district court said that there was no extraordinary circumstance but within the balance of weighing whether or not the city of new york actually can enter without having a wart we still have to protect the fourth amendment right now we have raps versus new york which is cited fifty four eighty thirty nine to three new york appellate two thousand and eight which clearly says that if you're going to have an emergency that you're going to demolish property you must state or make an emergency according according to their report they said it was uninhabitable but of course this is the report of the city of new york bay nobody has been happening and while he wasn't present on that particular day he and his wife were not present doesn't mean it's not happening and i mean during that time he was not using the houses as his residence or on but one of the things that the court should know is it's been proven that normally you would he would have normally been allowed to suppress that evidence of the search the village of fairport versus tear me to six six eighty second nine zero nine one thousand nine hundred ninety nine expressively stated the exact same thing it seems like it seems like in the interests of fairness and justice that the city is seeming that they can circumvent the fourth amendment they also understand that he filed a complaint which was before the commissioner that never had a ruling so the understanding of it is if he never has a ruling and you withhold this information and we're talking about again exact measurements with the report it says that eighty five percent of the property had been destroyed and you can't see that in plain view there's no way to see that in plain view and then they said that the new foundation is twenty five forty so it really comes down to whether the city can violate their own their own guidelines because under wraps of the new york they still have to make an emergency declaration there is no emergency declaration now i would like to be sickly state that when the district court made its ruling i want to critically emphasize that there is no mention made of a warrantless century but on the face of it it is a warrantless entry and he did state within his documents on the record that it's a nine foot fence that was surrounding the whole entire property and it was a barricade so within the plain view the city should have been compelled to at least state what their emergency was and we believe that if the city is allowed to withhold photos photographs of their choosing whenever they want that it would create a chilling effect because these this exact report was used to demolish the home the federal district court judge said that the property was for renovations but the report is for a new building so when you see a new building permit has to be ordered it is the destruction of the home now the allegations again your honor when you said well wasn't this building completely destroyed it doesn't get around to the illegal trespass which under section one hundred zero zero five of the new york penal law you unlawfully enter on to someone's premises and that is exactly what occurred i have no you know at this particular time a rest thank you unfortunate experience the plaintiffs had with their home contractor as described by counsel for appellants the issues on appeal here are very limited they are first whether plaintiffs timely commenced an action with the district court and second whether plaintiffs any additional amendment to the already once amended complaint would be futile as none of the additional facts asserted by plaintiffs change the fact that the complaint was untimely or that it failed to state a claim first turning to the issue of statute of plan because the property was being demolished and there was no demolition permit an effect now all the issues raised by council for opponents what property being demolished was a contractor just so incompetent that it looked like the renovation was a demolition it's unclear from the motion to dismiss stage but what the inspector found on that day was that the property was eighty five percent demolished and our position as as was found by the that was november seventeenth remedy that is to be only applied in circumstances one plaintiffs are unable to file timely despite a reasonable level of diligence the main argument put forth by plaintiffs was actually not in the operative complaint all the allegations with regard to the illegal trespass were not in the operative pleading which the city moved to dismiss upon however at a before judge donnelly of the district court issued her order plaintiffs moved for leave to amend their complaint inspection in nov twenty fifth you things first of all the legal trust passed has no bearing on the damages plaintiffs are seeking here because what the motion to dismiss state for the sake of argument saying plaint i'm sorry but the did illegally trespass on their property that has no bearing on plaintiff's claim damages here which are for the property damage which was caused by this incompetent contractor to whom the d o b issue the permit and second  plaintiffs readily admit in their brief that they were aware that the d o b inspector inspected their residence on november seventeenth two thousand and eleven as early as two thousand and twelve when they attended a d o b hearing so the two thousand and fourteen date they mention has no force they did not learn any new facts at that point additionally and the equitable telling argument plaintiffs argue that the comptroller's office withheld a determination of their claim but any filing with the contras office has no bearing on whether plaintiffs can timely assert a federal action here and with the with regard to the second grounds for dismissal here the district court correctly us us the substance of plaintiff's claims and determine that a failure to state a claim presents an independent grounds for dismissal it was at the judge's view that the second amendment complaint would not would not support the damages is futile because it would not support the damage is alleged in the first complaint failed to state a claim i definitely the complaint alleged violations under the fifth amendment and the fourteenth amendment and the district court also determined that those did not state a claim with regard to the fifth amendments taken clause because that claim was not ripe as plaintiffs fail to seek the appropriate state remedy which in this case as an article seventy proceeding procedural due process is similarly unavailable because plaintiffs did not avail themselves to the appropriate state