same parties in the very same federal judicial district after losing on appeal with due respect to district court i don't believe that statement is entirely accurate this case was filed the st time in albany county supreme court and removed to district court b dismissal of that  case carries with it the same proof precludes of effect that that dismissal would have carried had it been issued by the new state court when we filed the nd action again it was in new york supreme court and under new york law that was a permissible refiling of the case and when it was again removed to a district court district court was required to respect that new york rule allowing it to to be  refiled much of the pelleas arguments in this case center on why rule fifty one b of the federal civil federal rules of civil procedure should apply and i believe that the issue is fairly simple or i should say fairly clear and that whether the issue is whether new york law determines the precludes of effect of this case of this dismissal or federal law precludes applies the law of preclusion and it is according to the supreme court the  when the district court dismissed the case the st time it could only give the precludes effect that new york law would have precluded and simtec makes clear that in these situations filed again i go back to two simpatico when it was dismissed in federal court the dismissal is only what state court would have provided in a new york law was is that clear at all your honor in the in the st dismissal of the district court went on to explain why our cause of action hadn't been clocked properly pled would survive a motion to dismiss in that the defendant could be don't report also think he didn't think that you could properly plead it and in fact our court i think on appeal from that court said that was tantamount to a finding the decision in the st case very carefully there were three issues that it addressed the st issue was whether or not rule or a real property law for forty two d applies we contended it did not the district court disagreed and your court disagreed the nd thing that the nd issue that was actually decided was did we properly satisfy rule four hundred and forty two b we said we did district court said we didn't your court agreed with that those were the two issues that were actually decided so under new york law the issue of whether for forty to be applied is conclusively decided and the new the new complaint does address that with respect to futility and the district court did not deny lead to amend because  finding of futility and just said we hadn't given it information we didn't state that we did and this court read was that of the the reason it was denied leads to him was because we did not give it a complete you don't well again here in your this court affirmed the decision that your district court had to valid reasons for not giving giving leave to amend and that was because we didn't  argue that it was a non licensed we acknowledge that we didn't plead the licensure of the howard card companies but we've never once asserted that we were proceeding as a non licensed party our claim in the st dismissed in the st case was that because of the nature of the claim specifically quantum aero it that it didn't matter  whether or not they were licensed and because real property law for forty two d d just didn't apply and so the issue that was decided in the st case was that yes and forty two d applied regardless of the nature of how we were proceeding on relief and therefore in order to proceed we had to plead and ultimately we will yonkers contracting company case that was decided cited in judge hertz decision and in that case there was a condition proceeding that the plaintiff actually it was that rendered the st decision a decision on the merits and so i think i think i think you  the failure to satisfy a condition proceed and is you know that's a substitute of difference here we had a pleading defect in that we didn't plead something that we should have specifically noted that it was a different kind of dismissal it was a dismissal on the merits because of the because of the condition proceeding and they actually had to perform another act to satisfy that condition proceeding and by the time they had done that the time period to commence the claim had passed a fank you judge park  because appellate counsel litigant lack the skill and knowledge to understand the pleading requirement or federal procedural rules clickable the underlying case we are here because appellant made a conscious tactical decision not to comply with black letter and that it is permissible under new york law to refile an action dismissed soley for pleading defects has fatally flawed this argument ignores the fact that appellant case was dismissed because of pleading defects and its deliberate decision not to follow the local rules or comply with levon b in dealing with the court the st go around it also ignores the fact that under new york law a dismissal issued with prejudice and denying leave to amend isn't title to  sorry my two minutes is up i'm happy to keep going or answer questions whatever the court would prefer sure you know so you don't dispute that new york that we should apply new york law here right well your honor i think that regardless of whether you should the outcome is the same in other words i think there are grounds for you you said a moment ago that it's because howard carr made a deliberate strategic decision and also there was the pleading effect so if they had failed to plead a life sentence but but it wasn't clear that it was a deliberate decision what the result be differently your argument depends on the idea that it was it was a it was deliberate your honor my argument is that under new york law that's so you decide some tech applies and you would like to apply new york law in new york where a judge this were a judge intends to bring litigation t specifically say that where there is no where there is no other evidence that the court intended the decision to be dismissed with prejudice there's no question in this case that judge her intended this case to be dismissed with for him to have said it's with prejudice or without prejudice in the decision would have made a lot of sense because for one does that for him but he goes on to point out in his decision your honor that when he said i'm not going lead to a man and enabling act because the bridge is your right to file a lawsuit that state law otherwise would would give you there is a footnote in sense which says that we're not deciding today whether or not a decision issued on the merits under the one hundred in the way that we have discussed above would violate the rules enabling act if there were a contrary law and if you put forty one b next to five thousand and thirteen i think that's exactly what they're talking about there so that would be one reason i don't think some tech reaches that that conclusion and i think here again judge sure does a very nice job of saying no we're not going to do we're not going to we can't look at be contrary to the district court's interest in policing its own docket some tech doesn't apply and i think that's an independent reason so back to the federal rules of civil procedure and look at this case in the way it was actually decided it didn't follow the rules  concluded by not saying it and the other thing is we know for a fact that judge her intended that decision to be issued just because he's told us so again below and and also you that everybody is looking for in the st decision that it was intended to be with the merits is because the nd time judge heard said because i that's what i meant i don't think that that is evidence and that the evidence has to come from the st decision with respect to the paramount case that case was decided under federal law because it contains a mix of federal and state law claims this case would have been exactly the same had it been brought in state court if that were true then bring this court bring this matter to federal court is unnecessary superfluous if state court would have  to the same result but the fact is they did bring it to federal court by removing it because they believed that they could talk judge her into a different result and indeed they did and if judge if district court's decision is allowed to stand then the result will be exactly the kind of result with the court's an eerie sense simtec and all the other crap in their progeny they were trying to