representing charles oakley i'd like to begin my argument with why the district court's dismissal of the assault and battery claims warrant reversal the district court incorrectly summarize oakley's argument st any use of force was on reasonable because it was unreasonable to ask him to weave in the st place that is not our argument while we allege that there was no legitimate basis to throw oakley out of the garden we recognize that the garden had the right to do so so long as it was not done from lawful purpose such as discrimination which i'll get to later our primary argument on the assault and battery claims is that the district court decision made meaningless binding president president on the new york court of appeals a decision that was rendered after a trial in newton versus luther as the district court's opinion would give a property owner the immediate right to use physical force once a license to remain on the property is revoked that is not the law and i suspect that the defendants know that which is why when they cite to noon and three separate times in their brief they cite to noon and ice ages three hundred and nineteen and twenty five they leave out the critical language in that opinion the critic language is the opinion says defendant has the right to withdraw the license to the plaintiffs to remain on his present promises and this is the critical language and after having afforded her a reasonable opportunity to leave for a while she was behaving in a disorderly manner she refused to go he had the right to use reasonable force to reject her defendants would have t afforded a reasonable opportunity to leave that he wasn't behaving in a disorderly manner and that he did not refuse to go and the point being here and this all makes sense and that's why the noon opinion is so important is that before a private security guard can resort to physical force to get somebody to leave who when they when they revoke the license they need for that person reasonable opportunity  was asked to go he turned around to return to his seat which is not reasonable of the guards even on your allegations to treat that as a refusal to go he should be afforded to reasonable opportunity to leave even if your honor even even if he had somehow refused to leave which is precisely what the complaint does not allege alleges the opposite even if he did somehow refuse to leave the question then becomes also is what sort of force is reasonable under the circumstances all of these questions that we're discussing whether he actually left what type of force should be used to use are all classic questions  fact that a jury not even on a motion to dismiss but a jury should be determining and whether the force is reasonable things need to be examined such as the severity of the crime at issue i would ask this court what is the crime there was no time we allege that paragraphs forty one and forty two security guards read mr oakley and pushed him to the ground and he was not resisting we specifically allege that he wasn't resisting he wasn't trying he wasn't refusing to go but the point being is that all of these factors that we're discussing are also all classic classic factual issues and again we've alleged in the complaint as i not the paragraphs that these things as the defendant say did not happen now iran is the other things other than what the alleged crime at issue was with which there wasn't any kind of was a violation is whether the suspect posed immediate threat to the safety of the officers and others there's no evidence in the record that you did and whether he was found in the counseling he was beaten newman on the issue of whether the force used was reasonable or not interpretation by a fact finder there may be and there likely is other video as well that we haven't yet seen or taken in the form of discovery we haven't yet had the opportunity said just close to the security people who were actually effectuating era or hear directly from other people who witnessed what happened and all of these these are just all more of the reasons why this case should not have been dismissed on a motion to dismiss and should have proceeded to discover security officer to push into the ground that would not in my in our view that there is a factual issue but it would not constitute reasonable force especially when looked at in the light of what he was being accused of what you centrally would where where you're we're having difficulty hearing you judge calibrate c and i find that you're quite thing you did are there any adjustments that you might be able to make or should we take a brief recess and see if we can has no place in being unclear your honor i want to answer your questions not mr wig or didn't answer judge calibration you asked there any evidence your client was leaving without some help of course to get him out of their explanation for what happens next paragraph thirty five dollars he does not comply he asked quote why what's he been forced to leave the arena and quote if he does not satisfied with the response that he gets so paragraph thirty seven he says continues to argue with the security guys and says quote i did nothing wrong and i want to watch the game in peace and so he says and then as your as your honor judge carney pointed out does allege that at that point the two security guards grabbed him and pushed him to the ground within seconds it can string around what this is jury question to determine whether that was a reasonable response to the replication of for the following reasons and it has been determined as a manner a matter of law in the many cases in both new york and under federal law and that's more than under violations for a reasonable force which apply the same legal standard  answer is no your honor mitchell involved n y u security officers who quote forcefully removed i v individual for the building and the dying case also involved security personnel at new york presbyterian he may have a problem with alcohol i don't know but mr dolan a very clear that the reason that mr oakley was removed was because he was behaving in a highly inappropriate and completely he was an alcoholic but he suggested that because of the behavior the contest and examine has a right to vote somebody in the circumstances and one more thing in this regard you don't have the right to have to live in the alternative  time your time is expired thank you mr brick door you have two minutes a proposal here on your hypothetical judge carney was was appropriate i was thinking of using that data to want to personalize it but but there's a point is that there is no case where a license or revoke her license and then immediately resorts to for such there's not one case and in the defendant's brief that would that would stand for that proposition and the complaint as alleged and paragraph forty one specifically says that mr oakley did not however refuse to leave the guard and that he merely sought an explanation that is precisely what newton contemplated contemplates and a reasonable opportunity to we don't have to leave immediately do there is some there's and question what is reasonable is a fact matter just as with just calibrate his question what force even if they were permitted to use force what type of force used this is a classic back issue with respect to the a b a claiming of course we complete in the alternative and they can't have it both ways on the one hand they want to argue that the fact finder will conclude that though and believe he was not the hall that was kicked out because of disability or he didn't believe he was an alcoholic and therefore it's defamation and if i could turn to the defamation claim i just want to focus on the op the holic part of the defamation because i feel that that is the easier of the two the court and then that we didn't plead their special down which is or per se with respect to actual malice everyone knows the standard from new york times versus sullivan but we have but actual malice and numerous numerous paragraphs in the complaint i refer true that he knew he was an alcoholic and he did that to disband them especially damages is is clear we've alleged in the in the complaint that the cause of this mr oakley is trade thousand dollars an appearance that is what you're asking me you're saying his trade you didn't make about you could plead any details about his trade but you're saying that his money from making such appearances  rehab centers is that is that a trade well i believe it is your honor yes because that's how he earns his living and in fact the district court actually used that fact to show he was a public figure so on the one hand the district court used it to say he was a public figure but on the and i'm sorry about this but i did want to respond to judge newman's question about looking at the video evidence but is it possible to have thirty seconds to do that though that takes thirty seconds