today bank was the tenant of a commercial property owned by the plaintiff libor realty in nyack new york and over the course starting in two thousand and four through two thousand and twenty four regional tour movies over the course of time from january two thousand and twelve to december of two thousand and sixteen the property suffered sewage problems back ups all kinds of issues which became more increasingly difficult for the bank found that these were not on to the attention the landlord yeah and i think there's i think there's issues affect on that just just as parker but i don't think it's really necessary to resolve that issue and the reason is that it can't they came a time in december of two thousand and sixteen when their attempts to correct the problem with the backups in the sewage became very very difficult and then they were informed that there was mold in the building and based upon the mold report they received from experts serve pro and viral check they decided for the benefit the health of their pay their employees and their customers to exercise their right of constructive eviction and the reason that's critical that you were in the police that you have such a right under section t twenty seven of the new york property law of tenet has an absolute right when a property becomes uninhabitable to exercise a right of constructive eviction you agree to get from remedies and me didn't you agree no no article no that the lever realty would argue that article sixteen of the lease involving casualty insurance created a waiver of trust go banks right to exercise its constructive eviction under new york property to twenty seven if i understand correctly yeah you're conceding you didn't give notice and you didn't certainly give not as required by the police and therefore you are read line on the witnesses and testimony i think you would find that the landlord was well aware of the sewage problem ok but having said that i don't think the notice is even relevant and bill the decision to  implement the constructive eviction in december december of two thousand and sixteen they gave the notice in march there was a complete written march of two thousand and seventeen there was unequivocally we have a duty to our federal regulators we have a duty to our customers we can act continue to operate this uninhabitable business and that's the notice that was given and i think that was based on its constructive eviction up until that point they aren't do you agree  that's fatal to their right rights under under the two hundred and twenty seven of the real property and here's here's really where judge care is heard in my opinion in our opinion there is four corners of a lease the ceiling the roof the base that the slab and every piece of evidence before judge keris on summary judgment indicated that the fault the problem was in the lateral that went from the lease to the main sewer line now ten it's can't affect the sewer line or lateral amiss appellee only deal with the owner the owner agrees labor agrees that extra manners are the landlord prerogative and only the landlords and i will point you in the brief by the by the page seven he admits several of the service calls required work to be done on a portion of the sewer line on the of the premises so if you follow my wind of thinking here there's an admission that the defect is in the exteriors there is no requirement that we have to give notice to keep the property perfect in well that's the responsibility of the knowing express waiver under new york state law we believe that if you look at the cases that we cite the cases that are before this court it has to be xpress and it has to be in writing and it has to be acknowledge that was never the case those two provisions are perfectly harmonious and certainly in writing and knowledge yes and i don't i don't i don't believe that was there at all now i'm sorry what was there was never an expressway  trust such a sexy sixteen does not give them does not provide express waiver of new york state law under two hundred and twenty seven real property now and let me just point out a couple of things that's on the motion why we believe the earth there were there notify the landlord in writing right and we and i'm well if you did it you march march of twenty three that's when we were told when i'm asking a question please just wait you did not give any notice until march of two thousand and seventeen is that right on the mold issue correct on them there were issues about any issues though they were written they did not give written there was never a phone can all talk at the same time and when i am asking a question i value rather you what you want to answer my question right are you agreeing that there was no written notice of any given prior to march of two thousand and seventeen correct are you saying that  that the real propping ought to twenty seven obviates the need to give written notice so we gave the written notice in march of two dozen seventeen that was the notice it was quite clear it pointed to the our our duty to regulators under federal enviro check that this was not just a sewage backup issue this was a mold issue you had delivered to reus elements in your building they could not afford to continue to operate that business beyond that day up until that point  tresco unwittingly and for whatever reason i wasn't trial counsel for whatever reason they were trying to correct an error in a next year or defect it wasn't their problem it was the landlords problem the landlord never corrected it they they tried they've they operate a one hundred and thirty five branches all over new york and florida they never have a probably in which they are working really hard to stay in the bridge they couldn't afford to stay in the branch and the leonard affidavit by the a v p pope put forward to judge harris the reason that they couldn't stop and just  i'm the judgment the post judgment interest counsel would have this court believe that there was an attorney error that we didn't bring to the court's attention the proposed judgment that required the two four percent federal rate of interest post judgment and that is completely erroneous when this judgment was st when the st opinion in order of judge harris was rendered in jan june of two thousand and eighteen and before a proposed judgment and before our motion for a sixty b motion we pointed out to the court that the contract rate of interest does not govern in federal law post judgment and that was brought to the court's attention in the sixty b motion made then the sixty b motion was the night and then the proposed judgment was submitted and counsel myself inform the court we have no problem with the contract rate of interest up till judgement day and then for whatever reason judge charisse continue put in the judgment that post judgment interest would be a percent was clearly wrong we found that out three or four days after the judgment was entered we made a motion we made a letter the judge said fine we are running up against that fixed effects that but i just want want you to know that everybody was aware what the law was it was just an error and then we filed their notice of appeal we didn't mean to divest them of jurisdiction to is an affirmative defense which means that the talent has the burden of proof so if the court affirms and any one of the three grounds then affirm it's of the liability portion of the decision is warranted so the st ground failure to find the obligation that the landlord had to do the repair there was no evidence in the record that it was a structural repair there was no evidence in the record that there was an exterior issue that caused the problem all all my adversary speaks about is speculation it is certainly possible and there is evidence in the record that when plumbers went to the premises earlier they found rags and tampons that were stuck in the sewer system certainly if that were to occur that is not the landlord's obligation it is not a structural repair that is not an exterior pair in this case we don't know because helen didn't put on any evidence as to what the cause of the circumstances were respect to notice my adversary said that issued not need be resulted but that's not true because notice in this case was clearly insufficient it's not enough that they gave notice they had to give notice and allow the landlord sufficient time to correct the problem before they could claim constructive eviction the landlord received written notice for the st time on march th and they abandoned the premises on or before march st so three days we're living in three days have a nice life yes or no exactly and then deferred independent reason that the judge found waiver through the lease and judge parker touched on that point we believe that there was a clear and expressed waiver in the lease of the tenants right to claim constructive if the action i'd like to move now to the court doesn't have any more questions with respect to the appeal i'd like to move to the issues raised on my cross appeal the st one is the damages associated with a five year extension the threshold issue in that case is whether the stipulated state court settlement which is placed on the record for the judge in the state court action was ambiguous judge charisse you just wan for further fact finding you don't believe there's any fact finding in terms of an assessment of damages the damages if you're out a look at the record we had already submitted a full expert report on what the damages would have been including the five year extension and when judge harris denied that piece of our summary judgment we had to submit a new expert report on the damages so we don't believe that there is any issue with yours because it's interpretation of law you argue that the settlement placed on the record creates an ambiguity that needs to be construed correct but we also argue that we filled we demonstrated the parties intent through the declaration of the lawyer who represented lever in the state court action and the lawyer in this state court action explained that the parties intent was not to exercise the option which is the words they used unfortunately but to extend the term initial term of the lease by five years using the rents that were set forth in the option and as we explained in our papers the ambiguity arises from the fact that at the time the lawyer said execute exercise the option right to exercise the option did not exist and judge carrots lease the lease refers to the stated lease term as a twenty year term and then for any extension that's referred to error was the fact that let me take a step back and we are dealing with stipulated settlements on the record in open court there is a whole lot of cases in new york we've cited some of them the pages four thousand eight hundred and forty nine of our opening brief talk about it you're not just limited to courts are not just limited to the words spoken on the record in terms of what the parties intended the court is allowed to evaluate the record as a whole and here we believe if you just focus on the words there is ambiguity because the option the right to exercise the option did not exist and here we have two lawyers and it's even stated on the record and sixty five of the appendix lawyer while he's speaking the settlement onto the record he didn't write it down so this was something that was done in a backroom in the midst of a trial and i was submit to the court that had this been a written settlement agreement parties would have gone back they would have analyzed the lease they would have said disclose it deleted and were modifying it to state what the language of the settlement should be because they did it in more of an informal way although it is in forcible there is still some ambiguity there because they used language that is inconsistent with the language of the lease and the particular thing particular statements that they made were that we're going to trust goes on to exercise the option to trust oh did not have the right to exercise the option because it did not exist and that's the nature of the ambiguity and that's why the sarkeesian declaration which is the lawyer from the state court action should be used to fill in to demonstrate that the parties did not intend simply to exercise the option but to extend the initial term of the lease from twenty to twenty five years and if you look at the global settlement as a whole there were a number of things at play here there was no indication in the record that any of this was intended to be conditional it was current claims  settled trust got to read credit and my clients received a deferred payment and the deferred payment was in the form of the original the lease term instead of twenty years is going to be twenty five years so this option language in the contract they'd lose their benefit if for instance they're in default at some point correct around about i would say in this case they lost the benefit by entering into a settlement instead of waiting twenty years to determine what the market conditions were to determine if the option rental rates were reasonable for the market at that time the settlement was you have to exercise that now and the exercise of it now did not just exercise the option but extended which is what the lawyer said in his declaration it was intended to extend the term of the lease for twenty five years of the st option is gone and in place of that we are putting an extension of the initial twenty year term making that now twenty five year term if i can turn in my last two minutes of less the court as any more questions on that's a bit like to turn quickly to the sixty the big picture be it be amended judgment i think the easy question for the court is whether the court was can wait to file the nos appeal to thirty days after the judge rules on the sixty month notice this way the judge still has jurisdiction once it the law provides for the federal right and we can see that your honor but we believe that that is the inappropriate lens to view this issue we believe is that you're right we would send it back down and then walk and then the district court is going to put in the correct number we would like the court to rule here and once we've asked for in our briefs that the judge erred and judge abused his discretion in granting the relief in the st place in the context of the facts of this case and i'll explain why this court has issued many decisions which talk about the importance of finality the importance of the fact that it's rule sixty b relief is only available in extraordinary situations here we have a situation where the facts of the case were never disputed so every judge was entered in june two thousand and eight to two thousand june t national interest rate before this change easy right you can get your straight before it was changed was the contractual rate of interest and i had counsel raise that issue as part of its his objections to proposed judgment we believe that the district judge would have modified the interest rate to say it was the federal rate but they didn't argument is a waiver it's a mistake this is not a case where courts should excuse me the court below should have excused a mistake of what i've said just before is that is it just when you have a ninety three year old man and a disabled daughter to drag the case out and continue to make arguments that were not raised on summary judgment you know we're talking about justice in this case you know justice delayed is justice  d this is a case that should have been resolved you know at least eighteen months ago and here we are in front of this court which as my pleasure to be here today but there is a del i guess we should be given credit for the delay because the eight percent interest continued to accrue to a higher rate than the federal rate of there was a there was a judgment i don't think there's any question of the federal rate is two four and even if we condition and i don't think that is required to be given that notice under section two hundred and twenty seven of the new york property law it says if the destruction or injury occurred without his or her fault us or neglect quit and surrender possession aliso premises of the land so applied and he or she is not liable to pay the less or or own or rent from the time subsequent to the surrender there is no requirement or state law require notice and even when the leas requires but we gave notice in march of two thousand and seventeen that's my point we gave them we gave the notice and we were we weren't required to give them notice to cure it was uninhabitable if we were constructively a victim and when use when you superimpose on that the banking regulations of how we couldn't even vacate the place to correct them all the remediation would take in sixty to ninety days there's no way we could have cut their branch open and that's what the leonard affidavit explained to the court explain the o consequences and explain the the currency the controller issues so as far as an else on that interest rate we can all we we've appealed the original judgement so the original judgment could be appealed and i don't see what the with what the consequences is of the motion to resolve the order so if you have any other questions thank you thank you that completes a calendar or last the deputy