basement and couldn't make one hundred fifty dollars bail this is a tragedy of a person who is mentally ill he came in flat unemotional assigned to the one g block which had an observation at the end twenty eight cells there was one person who observed everything that took place his name was saw mr sorrels an in my client didn't want to lock back into his was thinking of urine or the trustee was cleaning it out and he put up his hands and he was bewildered no less than four times did officer r tell my client to lock the f back in in the bubble in the observation bubble comes out and brings him to the ground so testified he was hitting him as a recall and ct comes out through the sally port towards heavy boots smashes his head into the ground repeatedly in a horrific attack officer reamer understand all that yes as we've read the briefs but the question i believe  yes before us is whether the claim was time barred and whether even if time barnett should have been equitably told let me give us an information address that first let me read from a letter from february two thousand very poor notification of four o'clock poll in the morning from a priest to a non relative of a person and i'll get to the letter with diminished capacity a person who has diminished capacity is a person who really can't designate who should who they should be contacted yet judge ramos who did abuse of discretion felt that that was ok we all know we're all just briefly were governed by the disciplinary rules and if i have a client who has a diminished capacity i have to ensure his constitutional rights i have to make sure that that person has his confidentiality is protected there was no signal meaningful investigation when it come when it came to contacting the family this was a non brought brother to couldn't get any information from the hospital because she was work back once the statue of limitations was three years correct yes the local towing provision is three years except for extraordinary wasn't released by the year two thousand and six your client on notice well why because at that point kelly had been appointed executor what happened right when ke not want to be involved even past getting kelly were associated with each other i went to the clerk or not you want to be involved that's not our issue or issues when being charitable is possible when towing would have ended i know and i'll give you that so here we have the issue related to their due diligence the mothers in sweden the sisters in serbia and they're looking for an attorney they find prior to two thousand and six no this is this is after two thousand and six what happened after two thousand and six was is that they stephen push can fault for a late notice of claim he was did not he no longer wanted to  continue with the case and the family was in sweden the family was in serbia and what was happening then is they were doing their best to try to find an attorney and they found me through the lawyers diary and they found me through an attorney in the united states who spoke swedish who was an immigration lawyer and that's when he was able to translate a retainer agreement it took time to get to get kelly removed i had to you know i went to the court to the clerk and he said well you should do you should become in essence or into your vic because this you know the family is in another continent i won't be able to represent them i'm not a significant fact witness look i'm very sympathetic frankly but is that an extraordinary circumstance it's an extraordinary circumstance because it's not maximum feasible holland under the case that was cited boy boy by judge alice it's just it's did they do did they have did they do their best to try to get an attorney and clearly they did there was no there was an incredibly long delay here not only that you're honest if you decide anything in this case ok statute please listen to me for a moment sacha limitations aside there's so many people that are mentally ill in these jails and if you decide anything decide that there should be an anticipated use of force for the mentally ill that's what they need so they're not abuse so that when these officers respond they could have brought out the people that would have made all the difference in this case and i understand the statute is critical but this film only did what they could within their means with the language difficulties and that's what judge ellis found that's what judge daniels found at that time nothing had significantly changed from those decisions after the fact when judge ramos and that's why i believe it was an abuse of discretion to not allow this case to go forward there's also grave injustice you not going to find in hundred eighty three case that has been analyzed to this extent i sent this report to the justice department they thanked me for it i had a three star and someone who knew pat walsh who was a three star writers that reduce lashings and stabbings an  i could tell you i work with this man this man was on the ball ok and he would tell me exactly what to ask these people this is the case you need to make an incredibly good decision on behalf of the mentally ill thank you reserved the minutes of about thank you it pleases the court my name is kimberly sanford i'm an attorney with a law firm of heritage and for where of counsel to the westchester county a lot apartment and represent westchester county and westchester county department of correction in this matter there was a criminal conviction as a result there were two criminal convictions one at the state level and one at the federal level mr ct was sentenced to jail time as a result of both convictions and we do not contest that this was a tragic incident the question as the court has pointed out however is whether or not there is a viable legal claim against the county and its department of correction and because of two legal reasons there are not these are reasons that plaintiff has failed to address in his brief and has failed to address that argument this morning the first one being statute of limitations as the court pointed out that clay and as plaintive concedes the claim was not filed within the three year time period that was required under new york law plaintive initially made the claim in his complaint and on motion on a motion to dismiss that the such a limitation should be equitably told and there was an earlier decision that based on the allegations in complaint the court was not going to do dismiss the complaint initially but would allow us to proceed to discovery and during discovery what was found out was that the family was aware of of what happened to vick that his stepmother who had been married to his father for close to forty years and sponsored mr teodor vic's immigration to the united states was advised the night that this occurred as to what happened she by the way was the only person that he identified as his emergency contact when he was admitted to the jail and that they were able to navigate the legal system retain legal counsel have administrator is appointed to the estate and we're in  where they were in a position to proceed after so we don't can see that there was a basis to apply a typical tolling before that but even after that date there's absolutely no reason for any equitable tolling after that and the complaint  still wasn't filed until four years later and the only reason that the complaint was not filed was not because of the family's location not because of their inability to speak english or to navigate the legal system but because the attorneys that they had hired who were competent had decided that there was not a basis to proceed with the claim against the county they didn't think there was merit and because they did not believe it was would be profitable at the end of the day to proceed with the claim against mr cote there are not extraordinary circumstances the test is two parts there needs to be rare and exceptional circumstances to apply a little tolling and then there also needs to be a showing that the family acted with due diligence during the entire period of time that they were seeking is the lapse on the family's part the family could have retained legal counsel there was an attorney that was the estate administrator he could have filed a claim if they believed that the attorney had engaged in attorney miss contact which there's no allegations in this case they could have filed a malpractise claim against that attorney they could have taken a lot of steps they had obviously had the wherewithal to retain an original counsel and while plaintiff's counsel has to just that during this four year period of time they were looking to get another it's not your honor and neither is the fact that they couldn't find new legal counsel there's case law on this and the circuit which indicates that the inability to find a lawyer and even attorney misconduct which there are no allegations in this case would not rise  circumstances so there's simply no evidence it's an abuse of discretion standard on the motion for summary judgment we're looking now at what facts were shown during discovery as opposed to what's alleged in the motion to dismiss and on a motion for summary judgment decision certainly can differ from what was decided on to a motion to dismiss based on the actual facts and the court has the district court had the discretion to do that and in its wise discretion opted not to apply the equitable tolling doctrine there simply were no circumstances to do that moving on to the substance of the claim even if the court were to consider the merits which we don't think that it should because we believe that the claim was clearly time barred that section nine hundred eighty three claim was dismissed on summary judgment for two very good reasons one there was simply no evidence that there was an unconstitutional policy or custom at the level of the jail and two there was simply no evidence that any alleged deficiencies with the policy led to this incident mr ct testified at length during his criminal trial that he initially tried to cover up what he had done because he knew that the county would have never tolerated his conduct and he was afraid of employment repercussions that certainly does not support any argument that the county did anything to believe that his conduct would have been condoned covered up or accepted in any way he testified at length how he knew what the policy was there was a sound policy in place how he didn't need any additional training because he had received extensive training and that he knew what he did essential he was what he was accused of doing was not right and that he was going to suffer employment repercussions which he did under that testimony and those facts there just cannot be any causal link between any alleged policy and what mr ct was alleged to do throughout the course of the civil litigation plaintiff's counsel today is also referenced time and time again while george minister yes that was the case was dismissed as a him also based on statue of limitations  his counsel is has raised several times during an argument the mental capacity of mr tidd orbit and for the first time on the scipio has made a claim that the county somehow violated the americans  disability act briefly that was never raised and his complaint never raised in front of the district court there was never an opportunity for discovery on that issue and based on the facts there is simply no merit to any such claim there would be severe your honour's well it's not legally significant i want to relate to a story related to the statute of limitations that a lot of tell to so you'd have better insight looking at the structural long and hard to understand what happened in this case on the day that i got my letters of administration to fall this case ok was my birthday the very next day i had an extensive pleading that was filed that also referenced the fact of how little the my clients sister knew about what actually happened in this case when she contacted d o j the fact that there was alleged to be malpractise was a remedy is not consequential what's consequential is is bringing to t series described a testimony from the main perpetrator that indicated that there was no policy that was violating the policy in fact so on the merits and i think you're making  the constitution as relates to what happened to my client is that what you're saying are we doing such a limitation i think you're getting to the mon el where i would like to get to know where you are want to jump that hurdle of the statute of limitations right and i'm just saying i was ready to go ministration i follow the pleading this is with in terms of the actual menow oh my goodness let's shift commander that night had no training there was there was constitutionally deficient training there was no one to supported use of force officer and does what was done here that that somehow was sanctioned by or was a policy of the county you have a three part test under walker under the three part test your honor for the second circuit please and if you know if to a moral certainty remember he called out four times to lock the f back and that happens all the time in jail where where people do refuse to lock back in this three part test in the walker case you know to a moral certainty them ploys will cover a given situation and the plaintiffs much show that the situation person either presents the employee with a difficult choice of the sort the training or supervision will make less difficult there was no training for the one g block that's the testimony finally the point of my show that the wrong part of the wrong choice by the city employee will frequently cause the deprivation of a citizens constitutional rights one po said i did during the criminal trial i would the top of the department never would have tolerated this that's exactly the point how the white shirts been there the supervisors the medical personnel that were nearby on the intice appeared use of force also had to do and when he was in the bubble and say up we're having a problem sergeant we need somebody out here we got somebody he should've left the bubble he should've open those selling point doors that would have poured that's an unconstitutional policy an