appellant what i really want to say your honour's is that the twelve b six motion that was filed there are so many issues of fact why this should be remanded back to the district court mr grant just common sense tells you it was nineteen he was a police officer a highly decorated police officer for nineteen years and eleven months he was close to the th year to have the full benefits of retirement and he retired in addition to that he forfeited approximately a half a one million dollars of work that he incurred meaning whether it be overtime or vacation pay he forfeited that also add one thousand years in eleven months we respectfully submit to the court that it was under duress that he resigned and that that was true in other cases and this case is very different from that all of the the plaintiffs sink a pool rodriguez de blasio and cupola they will had over twenty years they were all made whole with their vacation and their overtime so they just wanted to try to reinstate their jobs this particular case with mr grant is entirely different he watched a tremendous amount of money  those places served twenty years and yours was just less than twenty years why does that mean that the results would be different well the result should be different here because judge one thousand c v and i have and thirty four when the city tried to join the cases that was similar cases she denied that and i believe it's docket number twenty one on that she and she denied that because it issue here whether the availability of post deprivation relief provided by new york law is is is out of which the which your client didn't didn't avail himself of conclusion that he could have brought in article seventy eight proceeding he didn't and and that satisfies the requirements of due process but your honor the article seventy eight would have been if the city had taken to fire him there were no nothing was done by the city he went in himself meaning mr grant and he resigned then you're saying resignation under pressure is like being fired under or coercion it's like being fired if you resign under coercion it's like being fired and and where as you would have been entitled to breed deprivation release if you were being fired relief if you were being fired this because  deprivation is not is not feasible where the person resigns voluntarily put under coercion the question is whether the post deprivation relief provided by article seventy eight does the trick and right where there where the issues of fact that you say interfere with the judgment on that on that issue will be in the issues of fact your honor is that we would have been right back here if we'd filed the article seventy eight and then mr grant was reinstated and subsequently fired you know subsequently fired he would be right back here in front of you that he was you know this this was wrong he was terminated role fully he was put under duress in order to do this and respect the article seventy eight dollars if the article seventy eight dollars concluded well we're going to examine to see whether anything was done that was improper and we conclude there was nothing improper so you lose that's essentially the situation that he's in because i mean that is one of the possible results of the article seventy eight you either win it or you lose it and if he and and having having not having not even tried if he's in the same situation as having tried it in lost that right but he should he should be able to put forth evidence of of the well he was able to he was able to do it in article seventy eight but he chose not to avail himself of it isn't that the issue in this case i your honor i think by him going in and resigning that article seventy eight is it would have been a moot issue it at that time he went in and roy his gay would claim that it was coercion that it was sick that it was coerced resignation equivalent to being fired right but your honor the one thousand nine hundred and eighty three is the remedy that he us i believe that that is your honour's but i believe i believe he's taking there's the facts at hand would permit him for bringing this one thousand nine hundred and eighty three action and allowed to litigate it respectfully so if you strip out some of the facts that i think you've been pointing to that are into pool that was it not the same issue i in the pool the same basic issue understanding that there are different facts the same article seventy eight issue record i believe that would be the same  analysis you know i guess this court has taken but i think this case is attached to totally different case than that case that's why judge five shouldn't she didn't consolidate the cases because he should have been able intitled to put forth some evidence oh wait the standard for taking a case as the lady is is different than it is basically simply whether or not it's efficient for the jobs to do it but it doesn't say whether or not the legal issues are  you see any distinction between the legal issues in these two cases i die i just think your honor and i understand that i'm not trying to be difficult nor my trying to reinvent article seventy eight laur just i think that the difference is is is he was in a different situation than the other the other plaintiffs do but how does that difference how does that difference change the fact that the resolution of capital was that an article seventy eight was available to them they didn't take it and that satisfies their claim that they didn't get due process how how is this case different in that regard  i can't answer that at this point i think i think i think they're i i just think it's factually different i don't think i guess if we want to specify the legal issues that he had the opportunity to file or could have but i think he chose at this particular time he chose to file the one thousand nine hundred and eighty three which we believe that it is the appropriate remedy if he files the article seventy eight dollars we're just going around and around and around where he would be terminated you know and a matter that was decided near months ago my colleague just now talked about suppose a factual differences between those who matters and how they were not consolidated in the district consolidated with mr grant's back surely weaker case one argument it is he draws the distinction that there are property you shoes involved in this case that were not involved and in that case pay attention and stuff like that is there anything about article seventy eight relief that would would have been incapable of giving him satisfaction that would just that could distinguish it from from a couple absolutely not your honor the capital complaints alleges that separation of property which is what mr grant argues here and despite what my colleague has said article seventy eight provides a clear mechanism article seventy eight dollars court should should develop the opinion should should view the case as one in which he was coerced without any proper basis let's say the let's say the article seventy eight that a judge or judges view this case as one in which he was coerced on the basis of trumped up fabricated evidence with no legal basis in fact what could the article seventy eight court do for him i believe you are th adversary was saying it would just go around and around and around because he would then be fired if he was reinstated after his volunteers the resignation voluntary but coerced resignation he would be reinstated but if the department wanted to fire him then they would need to give him pretty preview pre relief in advance of the deprivation right well and that's and that's what was prevents and officer from putting in their retirements after disciplinary charges are served and these these processes often take months if not years right and so so what mr grant did is he made a decision w and benefits and he looked at what the giulio court calls you know an opportunity to save face and he said i'm going to put in my papers now and i'm not going to go through the disciplinary charges he never even asked what the charges would have been and now claims that the constitution required a rd path right not only the opportunity to go forward with a robust disciplinary hearing or the opportunity to either challenge the results of that hearing right once we're done with that hearing there may be discipline prose in which case an aggrieved party to file an article seventy eight dollars or there may be no discipline imposed in which case we're done right well the discipline couldn't be imposed without pretty deprivation hearing and that's right that's exactly right you're not right and so i don't go around and around and around it might take one u turn he's back in his job and then if they want to fire him they need to give him the pre death provision hearing exactly and the hearing that is already contemplated under the rules right is is is the one that would have gone forward right had the charges them serve so there are ample procedural avenues here there's no allegation that any of those are minutes rebuttal thank you very much i think that the mr grant when this was happening he was threatened that by by mr brett and through his union office or missed the rector that he would be terminated there was not going to be a hearing the commissioner of the n y p d can unilaterally to terminate anyone that he chooses so mr grant was told that he would be terminated therefore he would have lost you know immediately and lost everything he chose to resign based on that the rats and these off facts that have been pled well and in the in the  complaint that is completely different than the cop pull because they take all the all the plain simple because they all had their twenty years you know if mr grant was terminated immediately he would lose everything that he worked for you know he has a little pension now that that he chose and i was his trial counsel at the criminal level and i recall you know being a month before this that he had to do this i mean i went through it with no it's not isn't it correct that if you went to the articles if you had gone to the article seventy eight procedure and the article seventy eight made a determination that that things were not done properly in accordance with law and he was coerced improperly into resigning that he could be reinstated he would then he would have and if he were reinstated then he would have all the constitutional protections to prepare provision release that anyone else that he then take that route but i don't think he did not take that route your honor i guess that is the issue here but i think for the for the duress that he was put on there we don't see you know if we if we look at you know the the facts around that that was played in the complaint we believe that this these these this should be reinstated to the district court and discovery should be done with depositions to show that you just can't you know use this type of i was not the i can't answer that judge because i was not the civil lawyer on this just did the appeal for mr grant we have a good relationship after the and thank you very much your honor as have a good day and be safe thank you very much