appeals quote it would appear that some courts in new york have imposed an additional prerequisite to recovery that the plaintiff in a section forty seven action show a chronic an extreme pattern of legal delinquency but the defendant they require many peers nowhere in the text of the statute judicial additions to any deceit wrong you aren't it essential to the question we have on which there is and a basis for finding intentional the seat in the first place before we worry about whether it is or needs to be extreme  shore and then i think that that goes to that the district court's analysis under twelve and i think that that is that the first issue to be addressed here as you specifically about the confession of judgment issue in that case you say that mr watt nick was guilty of deceit for saying that in the previous litigation your client did not produce any drafts of the confession or written communications about the confession or notes about its drafting words and forstmann and you say there were six documents that were produced now i thought that mr wat next statement was more accurate than yours let me explain why and you can tell me whether you think that someone could state a claim against you on the standard you profess the issue here is about do the drafting particularly maybe that there's a little bit of exaggeration or a little bit of an opening in the reference to documents about one of the six documents you refer to one is the confession itself one was admitted  by what nic who said except for one and there were no documents produced two of the documents that you are relying on are post post date the confession or judgment must can't have anything to do with the drafting one of the documents that was allegedly produced was not produced in discovery which is what lawyers usually mean when they say produced it was just something that was attached to the complaint in the  produced six documents not just one that were responsive than relevant to this issue is highly misleading and it what i'm my point is you know first of all you can dispute if i've got those facts wrong but my point is so a lawyer makes a statement in a brief not in an affidavit not about some fact specifically in his knowledge that's not contested in litigation about something about the record that someone can say oh that's not exactly position plausibly stated that he meant to do that that and i do disagree with your orders analysis on the factual well tell me tell me what other documents related to the drafting of the confession of judgment that were  now as laid out in the briefing as i attached his exhibits to the as words attached as exhibits the underlying motion practice those each word by what but that context is conspicuously absent taking that middle phrase written communications about the confession extraordinarily literally and out of context are you i don't think so i mean those those were the words that the defendant chose they were not wor they were elected and they were specific and they communicated to the court that no one written communication was exchanged and that turned out to not be true and everybody in the litigation had access to the same discovery record both sides it could be pointed out that this was an exaggeration if anyone thought that was such an exaggeration that it was worth making the point in a reef that this was was overstated when the whole issue is were there any documents that related to the drafting of the confession of judgment that's what was really at stake in the litigation at that moment right that is correct but i don't tell me what it is that is relevant to the drafting of the can fashion that was disclosed in the way that lawyers would normally talk about it that is to say as part of a document production in response to a discovery request right well as as i submitted in the brief that each of those documents that you they were each or written communications about that subject are they about the drafting you're saying that two documents of the six that you are relying on which post date the drafting of the confession are documents that show how it came advocacy but when it's you if i may your honor i think that you highlight an important point here that yes both of these parties had access to the records but the judge has however many cases on his docket and at the end of the day he relying on these assertions from these advocates to be correct yes i'm relying on your assertions because i had to go and dig back or have my law clerk dig back and find out what these six documents were in order to do this analysis and that's  and ultimately when the court the trial court in that particular situation was faced with that's with that precise scenario you know they rely on the briefs and fundamentally the words that the defendants chose written communication i mean you know it's a question about whether or not we will hold attorneys to the words they use and that is the words that he chose to use and fundamentally that these were written communications about that subject and i asked about the solomon action found litigation filed the request was she's an unfairly denied evidence it's severe because there are no documents that address these issues and players attorney had access to the sound action file but then we find out that the lawyers for them and their case out really said there was a litigation file but it wasn't preserved so what's wrong about saying this is unusual your honor that we'd like to see those documents and that litigation file the lawyer had the represented both of us we think there's something funny here in this well ition motion because they say it's been destroyed how is that intentionally deceitful to to raise that to the trial judge so judge the broader argument there that you raise specifically that you know the attorney in that subject instance did not put a litigator on those documents that was made that was advanced and that was not incorrect but that's a distinct argument from saying that there are no documents with what's implication well i don't know that they defined it as a certainly your honor but my understanding from having read the thread where the representative the two of them against this contractor and there were a lot of documents about wrong with saying well that doesn't make any sense your honor that that they just why would you destroy a file and i was one of my client was one of the clients in that case i wasn't actually deceitful to to say that that's not intentionally deceitful saying that there are no because that's the thing it's one thing to advance to the court that my adversary did not properly preserve documents and ergo i am deprived of an opportunity but it's  thing to say that i have no evidence i have no documents i have no opportunity to do those are probably have many documents that's for sure and that that is i was gone and that that that is the honest argument but that's not the argument that was made and i think that's the point i think that the been discussing this morning but judge i do think that you know and i felt like this in my brief you know the defendant had an opportunity to correct that you know look i did the standard is not one of an erring accuracy nor could it be the standard is one of candor and then where is where is the operative someone is so the other side wrote to him and said gee before i send an answer in i'd like you to retract these these very specific statements or moreover your own or in opposition if you see that you know you were incorrect you correct it and i've done that and i have been a correct and i put in that reply where i said look judge you know what he was right you know and i've had that situation in the where i represented it and what did mr what nick say in his reply may be something along the lines of and look all this is a distraction from the same for all issue which is that al kohli destroyed relevant documents or that there's really nothing relevant just desire argued to the to the court to the drafting of the confession of judgment his reply overlooked and intentionally overlooked what were the misrepresentation  o he wasn't dispute enough to make a clever argument a good argument demolishing some effort to distract from the good points that he was making  highlighting technical in accuracies in a phrase that was part of the argument i think that saying technical and accuracy is diminishes it and i think that fundamentally the question and as as this court documents that were responsive in this in this matter is not misleading in a very some are way that's absolutely right ok that's what you think absolutely do and worst one by the way the worst thing you mi ames admitted to abusing his wife on the other hand he did say mr ames i'm sure that i hit her at some point and then says but it was only a joke and only a light hit now i think it's a stretch to say that that's an admission of abuse on the other hand it isn't mr watt mix and characterization it was the judge's characterization and i must say i don't think that any lawyer is a blind just to take your client literally or to take him as as being  accurate in saying oh it was nothing it was just a joke and that's what all abusers say about some of the contact that they have i don't know why you know we have to acknowledge that that's literally correct what knew argue that the abuse happened i think you have a solid basis in this but there's no expert excerpt but he is saying literally that this was an admitted to on the other hand do we have any idea whether mr white make who came into the case long after that he was not present at this deposition was he no he was not so for all we know he's quoting the judge because the judge's acknowledgment is all he looked at that might be sloppy but  want to distract from the action that is pending between the parties by chasing after mr watt makes a lawyer for the wife in this litigation with this kind of lawsuit but judge it's not sloppy he was the attorney for a year at that point and the subject content of that motion specifically revolved around that issue and look you know bigger picture that charge physical abuse of a spouse is not an accident nobody does that accidentally and well but the charge was in reaction to an expert's report from the point of saying there was no physical abuse or psychiatry said that right but that's  that's why this whole issue came up is that there was a report that he filed from a psychiatry saying there is no physical abuse of her in this case that's what how this got teed up right that's correct your daughter and for him to then really the arguments that are being raised is just a perversion of judiciary law section four eighty seven each of the individual statements while they all might not have been one hundred percent perfect they certainly fall within the realm of zealous advocacy there's nothing in any of the statements and we can go through them individually but i don't think that we need to waste a court's time since everything is articulated in the briefs that each and every one of them are certainly plausible discussions of the factual scenarios as they proceeded in connection with the litigation that has been ongoing for eighteen years this is clearly a litigation tactic brought to distract this case a very acrimonious case that's been going on for over eighteen years the commencement can find an intent to deceive there's also nothing plausibly suggesting that there were any damages proximately caused from any of these statements also there was an opportunity when all the statements were raised in connection with the ensuing litigation to discuss them bring into judge ramos says view and to see if there were any issues with it there were no issues with it also certainly court of appeal certification is not marketed since the determination of the purported issue as cases that have applied judiciary law where there is a need i believe for an egregious finding is not necessary for this court's determination plus the split in authority isn't exactly as articulated by my adversary there is it distinctions to whether i need a chronic pattern of legal delinquency that's not an issue here so while it might be nice a magic argument for the new york's a court of appeals it's certainly not necessary for an adjudication of this case we want this case to go forward and the trial action without these continued distractions which is really quite frankly brought in bad faith unless the court has any questions i'll simply rest of my brief i have one question yes this came up in the context of