it please the court and counsel i'd like to address three points with the court the st is there the supreme court action handing in the supreme court of new york the nd this reaction before the circuit court in new york and the rd whether or not the writing from my uncle aaron or san now deceased was sufficient to meet the question of the statute of frauds with regard to the action before the supreme court of new york this action d as  briefs state is only against christina kemp and is not against the estate the action and all annoy is based on a breach of contract between my uncle aaron roseanne and myself way back in two thousand and three in chicago illinois i think i would urge the court to consider as a metric as to whether or not the supreme court is a duplicate litigation whether or not i would be able to get relief and these allegations in the supreme court of new york i would argue  yeah i think your argument is well placed as it relates to the supreme court action in new york if my colleagues in follow up questions if they disagree they can ask but in the interest of time i'd ask you to focus your argument i'm certain it's yes your honor thank you with regard to the serve at court the real question here is whether or not there was a judgment in the circuit court i certainly wanted the circuit court to hear this action before i filed it in illinois they were the probate court in new york they were probating the will i brought the in new after i filed the petition the surrogates court the press their procedure is once you file the petition they need to file the citation and in new york basically the circuits court's way of saying we accept your petition for hearing and we have scheduled your hearing the circuit court did not except m the titian for a hearing and the stead of a citation they filed their order which stated we're not going to entertain this action and we're not even going to entertain the petition for filing they mistakenly felt that there was no writing and based on the new york statute of frauds since there was no writing in their opinion direct your honor i did not realize a i was mistaken and making that titian that the writing would be necessary because i thought they would apply illinois law but illinois law would be we not require entertain it and he had the state made that argument i certainly would have produced the writing at that time and maybe amended the petition to meet those needs i'm not saying that the petition was particularly drawn my argument is that the circuits court did not entertain the petition mr rosen i can understand some of your frustrations but  standpoint are there not some case law in the state of new york where this was filed with this particular action that you're talking about file that holds that the circuit courts the decree or decision is considered to be a ruling and the merits there is absolutely no case law that states that your honor i have researched it and then fact opposing counsel as research it they came up with  as well absolutely your honor and if that were the case we would not i would not have brought this to the to the appellate court but the fact is that the trail court's order did i'm sorry that decision not to entertain jurisdiction is something that can be appealed and is that correct your i don't you know i don't believe it could i mean anything can be you can bring any you did go in and in an attempt to ask that decision to be reconsidered and you explained but you were not successful but you made that effort correct i did your honor i motion to re argue was never even presented to the circus court even though i tried to file and you never tried to found appeal after the end there correct instead you came right to  yes your honor because the contract was executed l illinois the witnesses were all in illinois and i felt illinois was a better forum to hear of breach of contract that took place in illinois and again to appeal those circuits court decision to me seem to be fruitless a waste of time and money when the circu the contract how is it in forcible there's no material terms i i know you say the oral agreement was i'll give you twenty percent but the written evidence of that is merely i promise to put you in my will ultimately under staffed your funds how would that be enforceable because the contract was executed at the same time as the will they were two documents integrated by time and by intent the di at the contract relates to the will which was actually cured and gave the terms of what the contract intended to and what what did you have that you would have attached to your petition had you gotten to hearing in the servants part i would have attached to the same thing i didn't illinois and would have attached the contracts they had that met that memorandum which would in and of itself has satisfied the general obligations law in new york which was what the documents were integrated into one seamless contract so you had a copy of the two thousand and three well correct correct was it executed yes and witnessed by two witnesses locally and that one of those witnesses i had posed in the new york supreme court action and they have witness testified under deposition and i believe that that's part of your part of the record there those two documents were contemporaneously executed and shared witness them both now you received information that there was more than a two thousand and three well and the two thousand and seventeen we all know that was subject to this this litigation basically that we're talking about how did you as two thousand and four revoked the two thousand and three will that was the subject of the contract so once i received those wills that's when i realized that there was a breach of contract that i need to file against the estate previously my understanding was that ms kim had just destroyed the two thousand and three will why not share your honor whether that correspondence is part of the record of the docket yes part of the record but i don't know that the correspondence was a put it in fact i don't think it was but if you point you said you had three you may do so much or you can wrap up and we can listen to mr grayson no you're right i won't take up the court's time with you i think that your questions you as the courts have said that they don't have to be identical name or number or their interests must only be sufficiently similar that's in the kapoor case and in the performance network solutions case here christina kim individually and as a representative of the state have the identical interest in opposing plaintiffs claim their or their interests are sufficiently similar there are infected identical promise as well because it was the underlying basis on which relief was being sought against her how was going circuit courts proceeding handing we're going the meaning of the statu well the case was still pending at the time that the case was filed granted mr rosen's claim it already been rejected as we've discussed for of reasons but the rest of the administration of the state was ongoing in fact mr rosen admits and he put things in the record here that he was still filing motions for relief himself in the proceeding including seeking to freeze assets of the estate humming the resolution of both the new york supreme court case as well as the illinois litigation one circuit court rejected the claim  that it was a final judgment at that point so i think it was still subject to appeal so i'm not sure it was fully resolved in the alternative it was fully resolved and there it minutely is not a lot of case law in new york  so following up and if mr rosen's it titian is rejected by the court he's not in any way it would seem to me a fair argument that he's not in any way party to that action at that point out of the actions pending he tried to become a party but how do we argue as it relates to him in this question of twenty six  resolved but there are many i mean matters and the case keep the matter from going up on appeal in that case the case i believe would still be pending even though that particular claim had been resolved by the lower court now again your honor i unable to find anything in new york that addresses this precise situation  but what i would fall back on is even if that case was impending and i believe in some ways it is because mr rosen is filing for other relief in the stated ministration proceeding relating to this claim seeking to preserve assets etc so there is ongoing action by him in this case and he seeking to protect himself in the event that he prevails on this claim i would i would say that i know there have been some indication that there was some doubt as to whether the new york supreme court case is a pending case for the same cause between the same parties i would argue that in fact i think it pretty clearly is the two thousand and three promise by or alleged promise made by aaron rosen to mr rosen underlies all of his claims in the new york a pending cause not a pending cause of action so the cause of actions don't have to be the same the relief sought to be the same the question really is addressed to others there's the same factual foundation for the claims and i think quite clearly there is the same factual foundation for the claims between the new york supreme court case and the case that mr rosen filed here in illinois with two  ninety three is concerned with county the danger room judgments there are i mean and st reach other i mean in the in the new york supreme court case the court or the fact finder could easily say i don't think ms kemp can commit any fraud whatsoever but that would not be inconsistent with the trial court in illinois finding that there was a preacher promised by mr rosen i mean those comedy and adverse judgment type of issues i mean they're not necessarily in play in the in the new york supreme court case well but the supreme court would have to find there's an underlying matter whether there was an enforceable promise made by mr rosen mr rosen that particular issue would be litigated in both cases there would be a risk  find it in your state of handel which rejects the claim where there was no sufficient writing to support the promise of the new york court it appears believe that it was making a ruling on the merits on the substance of the claim having received the claim from mr rosen and mr rosen having not presented any writing that would support the claim based on a promise claim it was for the grace of the sides on the issue of whether the circuit court ruled on the merits of the claim and getting to the end of your time i take it that with respect to the ruling by the truckload in illinois it's your action before the supreme court is not in the action against the state essentially they're arguing the exact opposite of what they argued in the circuit court in illinois where they were saying that the state action was that the illinois actually is duplicate of the action in the supreme court now they're they've they flipped the script and say because the is not based on any claim before the surrogate court as a circuit court has already rejected them those arguments and decided not to entertain it's based on the illinois court action which was dismissed and which is before this court now and the supreme court it action and as i said the the state has now arguing that the supreme court action should have reserve funds because it's not against the estate so it's not duplicated they're basically admitted with regard to the coulomb and factors i would argue that basically none of the  decision to not entertain it and to simply hold the yet have the action in illinois instead of instead of instead of in their order suggesting that i should have instead appealed back to the circuit court of the york there was no harassment which was another telamon factor because i originally tried to file in the circuit court of new york which would have been in their jurisdiction in the right form if the circuit court excepted instead and in fact the state could have could have said we would st certainly the the question of whether and now we come back to the original question i had can i get relief in the supreme court of new york for breach of contract against the party that's mr kim was not a party to the contract only my uncle and i were and my sister is as a rd party beneficiary but since christina can was not a party to a contract for me just try necessary the forum for having their heard in illinois it was appropriate the illinois as i said the contract respects the mil annoy witnesses were in illinois it it the state of illinois has a vested interest in dealing with with matters that take place within the state of illinois what we have there for for those reasons i would urge this court to reverse the order of the rosen that would indicate that all of these things have happened like the rejection letter or any of the other documents that have frustrated your efforts in new york what have you put what did you the letter from the clerk to the court and i did not include the letter itself but the court could see from the docket that the motion to reargue you was not on the docket and that was because it was rejected so it could be easily inferred by the court that the clerk's letter is what i say it was that the that the clerk was rejecting any motions because there was no petition is  even though the court doesn't have the content of the court's letter the court does have the fair that the motion to reargue it was never presented to the court or the dock one of the things that makes this difficult is that i guess obviously the circuit clerk the circuit court's clerk has the right to reject things without the court interceded we don't have a mechanism generally like that here and that it would be helpful if we had that letter as to how and why i appreciate that your honor and i wish i had  the foresight to have know this is where the arguments were going to go if they had included delivering the record unfortunately i i didn't i just included the docket again my  my mistake in not doing that but i think regardless if the question is that there was a motion three argue that the th you're thinking that the circuit court took in the consideration the docket change could show that the circuit court did not take that into consideration and me hey i apologize to the court for not i think i think we've pretty much covered it sorry i think that the against the idea of there the previous state has argued successfully of for the illinois circuit court the that the supreme court of new york's action was a duplicate of the action against the state knew or no i and then they are now arguing that the there they should not have to reserve funds because they action in supreme court of new york is not against the estate speaks volumes for  their intent and i think they're it's regardless of the my failure to include certain things on the considered fatal to allow me not to have the opportunity to litigate these well founded allegations in the illinois court where i believe  i thank you sir and thank you both for your arguments and being willing to participate with us here today under this format we will take this matter under advisement and we will render a decision and do due course we are going to take a brief recess at this time to prepare for our next oral argument so you are released at this point in time thank your honour's and