determined by a jury with respect to the substantive due process claim the district court ignored the majority of the evidence in the record that pointed to explicit affirmations by the defendants and condoning of detective carroll's conduct such that it created and enhanced the risk of danger beginning as in oaken with the first incident on september first of two thousand and thirteen when detective carroll kicked in officer drew his home door and began assaulting him from that point in time the detective carroll was told specifically by the chief of his department i can't control what you do outside of this department essentially giving detective carroll the green light again detective sergeant windsor that in fact a felony a burglary had occurred but the evidence pointed to the commission of a felony only time there was physical violence was a fight on september first right the first incident that was the  you only evidence about actual physical violence was the first time there was any kind of an encounter i gather you agree that the defendants can't be held responsible for the injury sustained i would agree that they cannot be your emotional distress claim because indeed the physical injury would have to pursue is a battery and the question is how does this rise to the extreme level i mean the new york court of appeals has noted that of the cases to reach it it has never recognized an extreme infliction of emotional distress klein oh yes with the i will concede that there is a very high burden with the intentional infliction how is it that what happens after the physical fight that you describe rises to the level of intentional infliction of emotional distress burden so adjusting my focus now from the increased risk of danger in the sense of claim with respect to the state cause of action it's the through the same allegations that the the neuro charged in acting in concert so the chief of the department and detective sergeant lanza by their actions and condoning mutual combatants by failing to turn over evidence of a tape recording of admissions of detective carroll to the district attorney's office in connection with the prosecution of detective carrol until august of two thousand and fourteen and that was after all of the incidents described in the record after being told on august second of two thousand and fourteen that he was going to incur a two day  for a vacation day to vacation days as a result of an incident that happened back in june and further being told by the chief stay away from officer drew's and he went from that point on over to drew's home and sat outside of his home disregarding again based on the conduct of the chief and the detective sergeant that proceeding year he was not deterred and they knew he was not deterred in the point being is that essentially for my client to have started dating detective carroll's estranged wife was was a problem in the department it was it was frowned upon and because of that circumstance sensually term their back they turned a blind eye and they gave detective carroll the green light to do whatever he wanted to and for that year he tortured mentally tortured my client if he were repeated disciplinary actions taken against the defendant can be he lost vacation days he was put on modify duty he had to surrender his firearm you don't think those are adequate but they hardly equate to giving a green light to do whatever he wants he ease basically being disciplined for some of the con so but after committing a felony in september two days allen being the battery of burglary he kicked my client was home vacuuming in his underwear there is an action that and that's why you have to pursue it that way go ahead so the police the police departments and after the phone have been committed and told the detective carol i can't control what you do so they not only took no police action they took no administrative action against him in connection with that incident they told him to stay away from officer drew's but yet  less than three weeks later he was he had gone out and bought a hat that said bully on it and came back into the department right in the chief's face and detective lanza's you know disregarding everything we had said to him and continue to harass and threaten there were many threats to kill my client and really if he had gone through with them which would be an issue of damages we i would think be having a different discussion here the fact that he actually did not have any additional physical harm should not take that's that's a damages issue respectfully that shouldn't take away from the fact that the risk was enhanced the risk of harm to my client was enhanced by the affirmative comments and statements made by the chief and he said you think it shocks the conscience that no greater discipline was imposed i think it shocks the conscience when you take a broader view which the district or did not it did not mention a tenth of the incidents that occurred here i think it shocks the conscience when you consider as you did in ok in and in pierce the emotional the emotionally charged circumstances in domestic violence situations that you have a detective who is a police officer ready son think that threats should be considered equivalent to i think when there are looking at the broad picture here of the domestic circumstances the emotionally charged circumstances that you have an individual who's disregarding his not only the police department but his direct employer and continuing to stalk my client and make threats only you can only guess as to whether he's going to carry them out but the focus here is whether the risk was increased whether what they did and deliberately failed to do by turning a blind eye did not increase the risk of harm to my client not whether it actually caused him harm but and it shocks the conscience based on what the what the court is aware of with domestic violence circumstances murder suicides with jealous point friends killing their ex wife you know former husbands and vice versa it's a serious necessary another four with the appellants arguments is that in their brain in her brief they consistently refer to the quote unquote village defendants in this case there are three separate individual defendants whose actions almost almost be considered separately and what if anything that each of them do to have some type of constitutional deprivation against the appellant so taking that standard there's basically no allegations that were  four minute conversation between himself and it had to carol lieutenant falco not happen to be there at the fair that day and witnessed some type of communication between the two of them when he approached the two of them about the regarding or so the ruse and that at the carroll he ordered investigations to be conducted when the investigation is concluded that there were violations of the party rules regulations he administered discipline as he'd been appropriate but didn't is it not an invitation to you know take your fight off duty and proceed as you want it seemed quite passive maybe even to condone the ongoing friction between them and maybe even threats sure you understood that occurred after the investigation carol that he couldn't control everything he did outside of the department which is true that the due process clause doesn't guarantee anyone a minimum level of safety or security but the chief lady at seeing that you know it particularly passive for a chief of police to dealing with his own two staff members who are fighting in a way that you know quite possible to escalate to just say i can't control what you do off out of the department when you're  incident what the chief did was he did order in the best investigation as to what happened bear in mind too that while officer his contention is that there was a felony an eyewitness and that that carol certainly have a different view of what happened so the police department in their investigation how to consider everyone's views about what happened there was not one one core that day which is how the police lorand of the incident the nine one one caller said that officer ruse in her words was killing some person and he was through swinging through the door with in her words the back turned out to be an aluminum cane so based on what what happened in that situation that the chief spoke to his officers and in his view he thought everything was over and th discipline pose in his mind wasn't sufficient to stop the conduct that in love itself cannot sustain a due process violation and i think what's also important this case in terms of the shot the conscious test is that in order to have conscious standard it has to be some type of intentional or reckless conduct not just negligent conduct so even if the chief of police theoretically should have imposed additional discipline that certainly wasn't intentional conduct eight he said that the incidents between the initial incidents in september and the west incident in august so all the words that were exchanged there was no reasonable view that those words words would have led to a physical altercation so certainly from the palmers perspective their actions were entirely reasonable particularly based on what a judge viewing the evidence also found course of the presentation the ground that was accepted was that the talk of carroll was not named as a respondent in the notice of claim that would require the court to ascertain or reconcile the split in authority so i don't think this is the case for you to do that saw me move on to the other grounds which were reason preserved i would note at the outset probably probably the best parts store in this one is at the end if you dismiss the the remaining federal forward these claims are just not agree just enough and again that ties into the statue of limitations even if there's a continuing violation the new york floors were all settled that you have to restrict your review to the time we allegations before you can reach for purposes of the statute of limitations all those allegations that occurred within ninety days of fall in the north of client if those two if those two allegations in and of themselves are not sufficient to establish the tort the intentional po report i would like to bring to the court's attention that both chief lee he and attentive sergeant lenses admitted in their depositions that they had no idea whether or not detective carroll was going to make good on his threats to kill had taken the personal complaint of the cat carol and detective carroll and essentially did no investigation at all he did not interview the daughter and he took no additional steps to investigate whether what they said was true he admitted in his deposition that yes they they had a definite motive to lie and fabricate the complaint and even though it was found to be unsubstantiated everything detective carroll told detective la six and has been at that post since that time period he received a disciplinary letter in his file and they essentially did what the court didn't and couldn't do with an order of protection they told him not to have any contact at all so essentially imposing their own stay away order protection and that can only serve to further embolden detective carroll and increase the risk of danger to my client thank you very much thank you both sides to take the case under advisement