important here the wording is that there is secondary liability when you continue to supply your property to one who you know or should have known is in fact also then saying that i that footnote in sony which shows the words identified and individuals so the one hardly makes sense to have a rule that says you can't shield yourself from knowing the shielding means you don't know who's selling the offending merchandise and the tiffany rule is you can't shield yourself from knowing that there's a person there that is selling offending merchandise on your premise tiffany says in the willful blindness section is that what you can do is you can be made aware that there's a current problem on your property and then shield yourself here what happened was more than a year ago there was an alleged problem on the property that sony isn't it a different case if we have one only to get infringement at time one and then the nd will need infringement time to a new other evidence doesn't matter doesn't manner doesn't it make more more likely that the landlord wasn't paying attention if we seven years ago there was not a single negative problem once this new occupant of the took occupancy there was not a problem for a full year they had multiple visual inspections december th the summer th was uncontroverted that we had visual inspections with their the rule that they are like you're saying that that would be relevant if the other trademark infringement was happening at a time when you're just saying it's way in the past we would we our position is that infringement of other marks is not relevant but our position here is that the court need not resolve this issue because there was no problem here as from the entire time that this this new occupant was in the property the emphasis in inwood and in t so the the existence of the tenant is just out of destruction but if i may i do have a couple of other issues that i think are clear legal areas that i would like to discuss even under my friends understanding of of tiffany and  they can see that they have to prove it prior sale of omega infringing good here there is only one bit of alleged evidence that that prior sale of any omega good occurred here that was officer recounting allegedly the contents of a over the arrest log with respect there's that is clearly inadmissible hearsay in fact it's closer to double hearsay because it's the the officer was here was retired and the importance with the of the re typing is it lacks the solemnity of the of a and arrest log and what the rule says from business records is that it must be the record to be admitted must be kept for a public purpose it we have a concession from my friends a concession by silence that these this email sent from a private email account was never kept by the new york city to be a public record it has to be as to recount factual findings that were made pursuant to legally keeping right the way the business record is my question is if this is an account from the office or of the results of their legally authorized investigation into trademark infringement on these properties what is in the office of public record just because you don't you know that it's it matches the original what right miller say six hundred and eighty two is that those two exceptions are parallel it would be quite would be passing strange i would submit that if a business needs to it needs to keep it that that any email some by any officer or any officer can be and i think my friends know that they're there in a bit of trouble on this is why on appeal they come up with this new exception that was never raised below which disclosure said isn't it only applies in exceptional circumstance that we need to be excluded and there was no other company and i may not make myself clear to counsel this morning it would have been in the underlying document police report it they got the proper witness would have been a police record right they have to and so my point is as we're looking at it under the deferential standard that applies to every day and sure rulings by the district court where the underlying document didn't have the evidence custodian come in but you're not disputing that it was a business record i mean oftentimes these stipulated to and you're not and you're not you weren't deprived of the opportunity to examine the police officer on the accuracy of what he saw i'm not sure i see why this is the kind of thing where we are to say that the district court so abused its discretion because it's so prejudiced you well your honor if i mean if i may just answer the question inside the building that the arrest log would have said that but because he was just history retyping portion of the arrest log we didn't get a chance to the examine the rest log to see if the rest log says hey this was just a street peddler outside of our property instead of an that would be entitled to obtain the rest log would be the complainant with regard to the property that's that testimony is in the record and so that's that is what they did not ask for saying the only evidence in the record saying well certainly argument was that you had knowledge and never argued as proof of the fact until counsel's brief in this court our statements taking that allegation at face value were if anything triple hearsay the fact that a responsible property owner takes the allegation of a after that in the undisputed leader trademark infringement for liability if you were late mr we're kind of mixing up our legal categories here on this on this piece of evidence we are saying that the inclusion of the evidence prejudiced us we're not seeing that there would be insufficient evidence you know in something in some other respect of the court rejected in our understanding but it is are these are related issues yes sufficiency in this particular case but the kitschy will pass the time use a response e mail from outside counsel for the defendant in that e mail she admits that there had been counterfeit goods bearing on mega straight marks sold at the property that is also the e mail that they rely on and the only evidence they have this test was cross examined at trial he's he's a principal of the defendant and he testified that he accepted that letter as true absolutely and this is also in the car in the testified under oath your honor he accepted that the statements in that letter as true absolutely that is what the jury heard and again we have the we have the response in october two one thousand and eleven from mistreated who says apparently the tenant sublet the space to an entity that was selling counterfeit goods bearing your client's trademarks she's not relying on the notice letter that we sent she is stating a fact that they know that this he observed counterfeit omega watches being confiscated at the property on that day and of course you have detective terry who testified was subject to cross examination the reliability of his e mail to  he described it that's how he described it and the reason it's an extract is because the peddler's task force could not provide the entire arrest log there was a there was information other about other brands actually arrest this contains different information  maintenance creation and all the other things you have to was again this was an extract of a public record he allowed it to come in and he allowed the exit the officer to be cross examined on the reliability of that stability it was tested reliability of the e mail was tested that it was a it was tested extensively at trial and argued in closing by the defendant that the email itself was unreliable but again that one piece of evidence was only part of operated the district court operated under the belief that tiffany applied to a landlord liability context and for contributory trademark infringement do you think it's necessary to show that there was the infringement of the only trade mark or is it possible to have is still not to be liable as long as they take action in response to knowledge and that was the issue for the jury here did this didn't landlord act reasonably and do enough in view of all the evidence in view of the fact that this particular store on canal street isn't enough is it in response to the infringement of omega's more story responses to infringement marks and the question is whether they were willfully blind whether they shielded themselves from knowing that someone occupying their storefront to omega that the subtenant was removed now at trial the evidence that came in they didn't investigate that further they didn't put any signs up to any counterfeiting signs they didn't check for back storage rooms and when you see the as those features of the property were girls and that they cannot be willfully blind to occupants infringing the trademarks on their property they haven't given given the circumstances tenant is t was t a discount that was the tenant in two thousand and ten when the raids occurred and that was the tenant until after the lawsuit was filed they were the same tenet of the judge told the jury that doesn't have to be the same infringed rights and wrecked he did you know was not relying on liability only if they were convinced that it was the same tenant on the jury was incorrectly instructed that even if the tenant had to say a sub tenant had been removed they could look to see whether there was evidence that continued to she she testified she had no specific recollection of the conversation and she was confronted with her deposition testimony that's that was she didn't ask the tenant to do anything reasonable jury based on that evidence could have concluded no subtenant either exactly around we focused on omega trademarks we focused particularly on the timeframe between the notice letter and set in september two thousand and eleven and that investigation in two thousand and twelve the you answer to just mean that she's a set of questions also i think answers the questions relating to the fifty six point one statement that your friend has pointed out because that response is really irrelevant since we agree him and in fact we disputed that is immaterial for that before or had infringed all of these are the marks the judgment actually was talking about is quote of and that is an accurate statement of the jury instructions of the summary judgment rule it means that if your honour's were to affirm the ruling on appeal that any time you had one infringement one year ago three years ago seven years ago that the landlord would then have to set up secret shopper stings on every new subtenant every new argument that comes into a property every single time otherwise there would just be a trial every time about whether happen here and viewing it in the light most favorable to the jury verdict we would have to conclude that not only did they find it was previous so make a sale that there were previous sales of many other counterfeit items and that your client obligated himself to take certain actions to minimize the risk of counterfeit sales but that evidence like the storm room in the back that was not removed etc indicated that he had not so to that extent we don't have to decide this case on a theory  jury instructions wrong the state of the law and if there was at least a serious possibility that they did not find that it was the same infringer this was a new theory that was it was a throwaway line in one cross examination a services tenancies after three hundred and seventy five canal either knew or had reason to know that tenet tenet or other occupant of its premises was selling often for sale or distributing products bearing counterfeit that's right wrong what part of that what component of that is the fact that it's referring to property and not the one infringing and we heard council today say another admission that under those instructions it is even relevant  the evidence undisputed that every time we were told that there was an aversion and we kicked the we kicked the person out there was not a single problem for a full year it's actually you have to set up secret shopper stings on the new tenant over and over again in this case it was undisputed we sent people to take a look there was no watch on display they sent people to take a look two times after we kicked out the alternate no watches on display th this verdict and affirm it then the rule of law would be that if there's ever a prior infringement one year ago three years ago seven years ago the new tenants have to be because usually investigated for the jury and were it didn't have anything in the year before the via legit infringement there was absolutely no evidence that anything inhabit it for a full year despite multiple visual inspections by the by the other face up to the fact that in the prior year despite multiple visual inspections there were absolutely no problems yes there were problems three years ago  superficial investigation that the jury could have found that there night and that would have been legally insufficient under the narrow let's not talk about the ultimate finding you far get to us that you were conducting inspections and i'm suggesting to you that it was within the jury's purview to conclude that those inspections were not adequate it was even in the history we respect and it was not in the jury's purpose saying the jury instruction that it was that the jury was told it was irrelevant i saw what the jury was charge you were saying that i mean you you're stating that this is an absolute fact it was disputed fact whether you had removed the ten it was not a material fact under the jury instructions or by counsel today stood up in court and said that the question from judgment nasheed well the tenant was removed irrelevant elephant to what kind of inspections and what kind of due diligence you would have had to do whether the well again all of those were for prior removed and removed sucked out of the jury kandice if that is relevant the jury can decide whether you take adequate measures in response to know you're out of the