may please the court my name is daniel schneider and i represent the plaintiffs erik who new york drilling and eight consulting court in this in this appeal mr hu who's here with us in the court today and representative of new york growing stand before you impacted men not a robot not from a rising cost of material labor or from healthy competition of fellow x of acres but because of discrimination by the city of new york which has given him given them the reputation that the city and it agents which apparently used to include what was spearheaded by one of its assistant chief inspectors dennis burkhardt will come to harass any job that they are on while my argument is fully briefed the error of the district court causes substantial damage over and above this decision other than just by being incorrectly decided it fosters a motivation for governments to be opaque to obstruct investigations bring darkness where transparency is preferred to prevent the release of that would not be subject to whatever the rigors of the words analysis but that's different from saying it should not dismiss that all or should be dismissed without prejudice to a argument that it's not adequate and then give us a chance to reply because we've got a bit more information we can you at but then there's a third argument that has to do with give us a chance to exhaust remedies and other litigation going on elsewhere that might give us information that would then enable us to play well your honor i think answering your question about numbers two and three i think that they're somewhat merged because we we do not have the information we need because the city has slow walked the disclosure of information for our investor investigatory efforts we filed our case believing that we had enough information to survive a motion to dismiss we had you seeking to survive a motion to dismiss on the basis of the fact that something is bound to turn up in under the fi request so that and the city must be slow walking this because they don't want to reveal to you that you really do have a claim well answering an inch away entering your question in two ways we believe we have enough as it stands however in the event that we did in the event that we don't yes we believe that the city is slow walking our claims one for oil request which is still pending in an article seventy eight dates back to february two thousand and seventeen the other one we haven't received a single document and that foil was over a year old and which was a result of submissions by the city in in their motion to dismiss this is are here on whether this we are here the case was dismissed for failure to state a cause of action but we are here on the judge's decision to dismiss it with prejudice now ask her to  know this before i got ready for this argument but there's a lot of seconds her case says that if you go ask to amend your complaint you can but your honor i believe that that is in our papers  the during our during our pre motion colloquy with the judge we had a long discussion about this being the last best complaint ok the judge herself said and this is in page one hundred four of our appendix that if new facts come to light of course you can repl so i agreed in that colloquy based on based on that stipulation that this was that this was going to be my attempt at a complaint so we replayed once or that we don't know about but that it's it's true that we're talking now that we're talking in an ancillary fashion about article seventy eight in the state course which is not before your honor's that is true however it does go to the question of what the city can do in order to run out the clock and not give litigants their day in court  even talking about they didn't they did not respond timely way to boil requests there are remedies for that in the state courts this day courts are sometimes very slow and those are all facts of life but i don't understand district court yes there's a secondary potential issue about whether you can file an amended complaint but i haven't heard anything to suggest that you actually could do that and there was this whole discussion about this is your last s to get more but so far we haven't heard anything about the complaint well the complaint the complaint does state cause of action and ledge a pattern of harassment ok and how do you get specific inspector and he was told and he was told that this inspector was going to be let keep keep doing what he was doing because it was good for revenues i believe that is a  i believe that someone with the power to make decisions that said that this conduct is going to be supported even if it's by one person i believe that the commissioner was the one was no longer with the department of buildings so the deputy commissioner stands in the shoes of the of the prior of the prior people who make policy towards you and discriminatory animus but we do think that it fails to say to claim because ferg sample the selective enforcement claims plaintiff was required to plead sufficient compared i think it would be easiest to these really clicked closely correlated comparatives right i mean why hasn't the point why haven't the plaintiffs here planted a pattern of harassment this pages of things statements may conduct undertaken going out of the area they're responsible for why isn't that a pattern of harassment of these plaintiffs are used alleged are you talking about for substantive due process  intentionality would be that you are doing illegal things to drive someone out of business or you're using your legal authority for all teary or reasons and here in the correct me i had to i have to have a misunderstanding i thought that there were various theories of due process played by the plaintiff one was this driving out of business theory but this also recognized in this court's decision chala for chest something i'm not going to say it wrong which talks about a pattern o is for enforcement actions taken against well actually three enforcement actions taken against new york trailing and one taken against and another party over the course of two years and that constitutes a key despite the conclusory statements of a campaign of harassment that hardly constitutes a campaign of harassment not to mention the end of viz that were issued were he doesn't dispute that they were out of his area of responsibility to go after who it's it's conclusory in the sense of and then when you talk about the specific examples it's three enforcement actions there no no i'm not talking about the comparatives i'm talking about the specific in foresman actions taken against the plaintiffs there are none that were taken yes you there were three taken against new york drilling over the course of over two years how many do you need i mean  over a puddle of water so it was for the excavation site which the concrete unit deals with the exhibition site creek goes into virtually every construction site so yes this  puddle of water well it was for failure to drain excessive the excessive water and it was issued to new york drilling company it had nothing to do with workers being in there the allegation is that somebody else came first of all the allegations that it's not a violation and then that's sort of backed up by the statement that ensues a contractor of another race came on board it was not a problem even th a bottle yet didn't issue a volley so i think that maybe the complaint is a bit brief is a bit misleading with the complaint alleges is that new york drilling was at all times the general contractor on the site that had a puddle of water that they were in issued a notice a violation for failure to drain the water they were given an opportunity to drain the water at some later date burkhart came back to that same site that on but with respect to the standing pool of water it's the same site and they're saying i think what they're saying is white workers standing around the pool the pool of water at some later date and that york chilling didn't get a subsequent notice a violation but the violation had nothing to do with workers it had to do with the fact that there was a pool of water that hadn't been drained and that's what was new york filling both times of the feeling is actually alleged is an asian owned business general contractor i think yes owned jets so it was always their site so if anyone was going to get the second and ovi it would have been new york discriminating right so you have to look at circumstantial evidence and the circumstantial evidence comes in the form of x who is this favored as one kind of treatment but a b c d and e circumstantial evidence that and we also know that mr burke her right sixty three percent of his violations two asian businesses and it's also alleged that he doesn't normally work and it's said that he goes out of his way off his route to flop and i think now that they have gotten some of the foil request they at they realize that there are no pre defined routes you're given complaints that you respond to and if you live nearby sometimes they trying to accommodate it so certain inspectors will go to certain places more often than not but there's no predefined rounds and but putting that's one side the i think the typically in good like an employment discrimination case you have evidence that an adverse action was taken against you and then the defendant will come the employer will come back with evidence saying that it was an  illegitimate action and then you can show through comparatives whatever it may be that no know what they're saying is actually not true but here that's not the kind of claim we have it's a selective enforcement claim which means you specifically though the defendants in force against you specifically different than they did another individual because of personal animosity in the case of class one are saying is there needs to be an two it's the one she calls alternatively the third one which she says appointed to make the process claim of meeting this requirement by showing true pattern of harassment by government officials with the harassment is systemic an intentional and tell me how this complaint doesn't lead to a pattern by government officials that systemic and intentional because i think no i don't believe that three enforcement actions taken over the course of two years is systemic and pervasive harassment or even standard yes to your case is a summary judgment it just putting aside the cases if you as the plaintiff know how many times you've been harassed so it's you put it in the complaint and if you put only three times that means that you've been harassed three times and that is not sufficient to state a substantive due process claim really what you're saying something like they need to say at least something about what a typical rate of violations might be for contractors because of this is totally outside the record of the complaint i would be surprised if contractors in city of new york don't wind up getting lots of this like parking ticket yet we get lots of notices of violations so  that's exactly what i'm saying and also due process claim fails for much the same reason and in addition they were given due process in hearings an article seventy eight brief thank you your honor just a just a brief response just to get back to the objective standard i believe that we did it we did allege that in our complaint and that goes into our standard of pleading argument with which i take it to mean it says this sure there is a pattern of persistent arrests yes but the specific example there were really short on specific examples right there were only four or five over a several year period taking both complaints together there are maximum i think of five different incidents right of the complaint that the complaint explicitly says that these are examples the the asked the question i would ask the court is how many is necessary to to have sufficient compared to ours or show when we are going to be forget the comparative i'm just focused on what happened to mr hu the ssion interests and new york well they all know presumably how many write ups they've gotten and i'm just wondering it's not a question of how many is necessary or what needs to be described in detail but at least these are examples there are examples of how many if you said somewhere in the record but the new york city website does list all notices a violation and you can and you can do a listing by contractor and there were hundreds so but it would be nice if that was in the complaint but you're  representing that if we went to that website we could hunt literally hundreds of violations issued to these point absolutely and the objective would that indicate that the inspector involved with are in typical cases yes you can see the actual ticket and mr burkhardt was involved in a ton of them and by the way has alleged in our commission that he actually tried to cover up his involvement in some instances by coming noting the violations and somebody else actually wrote you took the words right out of my mouth your honor and there is there's allegations that he went obviously as noted by correctly by your honour's that he went out of his roots and regions that he had specific bias and that he would use over time as evidenced by this admission by the city on their motion to dismiss it showed that he worked an entire day double billed for lunch and then went to flushing to responded to by one of the examples in my complaint where mr hu this is the example where defendant emraan was sent to give the actual violation for failure to have plans on site  this is this was on one hundred sixty second street and what happened was mr burkhardt shows up the b deal b as a complaint driven agency they they have so much volume that they go by through on complaints he shows up based on some pretext will excuse starts jawing with mr hu once he shows up excuse my informal language and and then when mr m wrong comes the only violation they are given is failure to have plans on site even though he was shown plans that that was ultimately dismissed but this shows the problem with this system where there was a stop work order imposed that literally took months to lift based on a violation that was ultimately dismissed and there was no violation given me want to live i had no right but responding to your question of course thank you both we will res