case as primary authority who are finding that if a transaction is part predominantly involving real estate that section four hundred and forty two d of the new york real property law prevents a commission from being paid if the person seeking it doesn't have a broker's license our case is significantly different and i'd like to start by distinguishing that case in the prince rich case the plaintiff sought out ayers for a specified property by the seller and then took a commission or they called it a successful in this court as well as district court correctly decided that you can call it commissioner fee by a different name that doesn't change what it is our case however is significantly different in this case we have car companies was given specific criteria for determining whether a property is suitable for the siting of a cumberland farms convenience store they identified one hundred and twenty six different sites that were suitable or at least met most of the criteria and they gave that list to cumberland farms there was never an expectation that cumberland farms would certainly buy all of those and in fact they did not moreover based on what the howard car companies was given they did not have the authority to enter into negotiations on behalf of cumberland farms for these sites the expectation was that cumberland farms would decide which sites they would were interested in and then howard car companies would either broker on the happening to go she had on behalf of the sellers or the buyer cumberland farms so the real estate commission would not have come until a separate agreement had been reached cumberland farms cut our car companies out of the transactions bought them without after informing the howard car companies that they were not going to buy these properties identify the sites we arrived at the damages by calculating what the howard car companies would have earned in a commission had the deal had they been able to continue with the  transactions but they were held out so therefore because we are not seeking a commission we believe that section four hundred and forty two d of the real property law simply doesn't apply to our to our case buyers for properties offered by the defendant in this case yes they were finding properties but they were identifying specific properties that met the criteria set forth by cumberland farms the new york courts of specifically said that it doesn't matter if you characterize a real estate services that i'm a finder rather than a broker you still have to be licensed and  seems to me particularly problematic when you're saying that the value of what you offered is measured by what a brokered completed  honor except that in this case there were they yes they found properties so they were but they were not entering into negotiations to purchase the properties they simply compiled a list and told cumberland farms here it is and the cumberland farms then decided what which if any of the properties that they wanted to they wanted value of that  if the howard car companies had been allowed to continue to participate the nd step would have been to either enter into a brokerage agreement with cumberland farms as a buyer's agent or enter into an agreement with the sellers also we could have alleged anybody can allege that they have a license in this case we made the statement that they are engaged in real estate brokering and you know we couldn't have made that statement unless we were licensed or howard car companies was licensed my last point is  north responding papers to the motion we still did not believe that for forty to apply i did specifically ask in my final motion papers that if the court found that the reason for dismissing our case was a great pleading defect i did ask for permission to file an amended complaint everybody knows exactly which paragraph i would have had to amend there would have been no prejudice whatsoever by allowing us to amend even though i didn't attach the proposed amended disquieting things like everybody knows what we would have amended but that leaves you without ever having to file papers with the court that say we will amend to state that my client has a license because if that were not true there would be repercussions for that and that's what's disquieting here is your client has always avoided in any court papers attesting to having a life again i think that stating that they were that the appellant was engaged in the brokering of attorney to say look we don't think we need to plead that under this statute but here's our license and pluck it down on as part of the record and through at least three court and i would point out that section four hundred and forty two dollars d does say that we must plead and prove we would have had to prove that before we would have been able to recover anything at trial my time is up  president thank you not only did they not clearly state that they were licensed throughout the proceedings they made every effort to argue why it shouldn't apply to them and rather than just coming out and telling everybody yes we're license i came before this court with a case where i sued the city of new york and i did not plead that i met the requirements of fifty eight would you allow that complaint to continue on him but your reply what's that he wants to re honor he had every opportunity i asked for he could have done it as of right after we filed our brief which the very st page says he didn't meet the statutory perec was that he could have filed any mention of it in his opposition because to me in a letter to the court after the fact he could have done any number of things to do that and i think if you make this court and pour out the lincoln towers community said th that in their own decision food holdings ltd the bank of america corp in two thousand and eleven similar case where plaintiffs never put forth the proof and you know it's important also to know as you said it's not in the record and to the extent they're saying now that they are licensed if we're going to go outside the record we would say to you that there's evidence that they may not have been licensed and so i really don't think that it's appropriate for a counsel plaintiffs not to present the proof when they should have forced us to come all the way up here to see you in order to make a statement that he should have made months and months and months and i think that there are decisions on point we cited a number of them which say that counsel that helen who fails to do that shouldn't necessarily get the was engaged in the business of brokering commercial real estate deals they then go on to say we went out to find properties specific to a commercial client's demands with the intent of being compensated by the sellers based on a brokerage commission if this is not a real estate if the underlying purpose of this transaction is not real estate i don't know what is the only case that they cite in their brief to this court for a different proposition is right or and that's a court of appeals decision from nine hundred and sixty eight i didn't catch this the st time or eat what i put in my brief but in looking at it again it's very clear that the court in that case was dealing with a situation where the basically said there is there's a difference between buying and selling securities and buying and selling real estate so you could buy a corporation that owns real estate that being a license broker you could buy you can buy stock in that company that's a different transaction and then if you look at the the only other case that the site to make their point that this is that they can get around for forty two d somehow in their original brief to the district court they started koplowitz since two thousand and two thousand and eleven case out of the nd department if you look at that case again you're talking about the sale of an interest in a company that holds real estate and they're saying in that case you could possibly get around that but on the  what they did in the facts of that case is they said actually it doesn't apply here because this guy was going to be a principal in that company he wasn't going to it wasn't about selling the real estate that the company owned and then just a few months later and then a month later two thousand and eleven the nd circuit puts out a future sac which is cited in our previous and there they say it doesn't matter how you characterize it as a broker or a fine or whatever if the dominatrix if the dominant feature of the transaction is the sale of real estate for raise that the allegation that they were that they were engaged in the commercial real estate transactions in the complaint was sufficient to meet the statutory requirements of fo not raise that argument below they continued throughout the entire process to argue that it didn't apply rather than making any claim like that also it's a false dichotomy your honour's it's obvious that you can say you are a licensed real estate broker without actually being one people do it all the time the statute is here to prevent people from doing things like that the main reason why you don't think you know that many money if you hired them and they weren't licensed or is there something more to this is  why you think your client gets the benefit of what they found without any obligation to compensate the good question your honor i'm going to qualify my answer only because we never got to discover in this stage this is a large you two large companies i represent we have no idea what ten properties they're claiming they allegedly found we bought it's not in the complaint i don't know i don't have enough information to even tell you whether those properties are in new york connecticut or massachusetts  one hundred and twenty six properties and we found ten of them he doesn't tell us what ten they were i don't know and this information that he's brought to the court today about us cutting him out of the deal i would challenge you to find that in the pleadings it's not in there so i would say the reason we don't owe them money is because they haven't established that they're brokers i don't know that they legitimately introduced us to any of the ten properties i don't even know what the ten properties are and more importantly they may be doing this is that they don't want to be stuck with whatever contract terms they actually had with our clients so they're claiming there was an engagement right when they initially filed this case they said we were engaged  by st hartford to go out and find these sites so we said ok if that's the case tell us the terms of the alleged contract and they said no there's no contract we only want quote to mail it i believe it's possible that the contract that they are trying to get around has terms which are unfavorable so they want to use a theory which they know they cannot use if they're also pleading printer contract that's one thing but i have polled their license records for the principle of st heart for company from the secretary of state there are two month gaps in every single one of the renewals that he filed for his license throughout the period which is available on the trans the license transcript but i do believe there's a very good chance your honor that they were not licensed i think they're trying to avoid a contract that they may not like were new every day if you look at the licensing transcript every single time that they went to renew their license they were two months late at least as far back as you can see on the transcript so there are periods where they weren't licensed including periods that are involved in the complaint and there's law out there going to that they have to be licensed the entire time so yeah i do i do think that there's something fishy here and as we pointed out to the district court in the district court seem to seize upon this is a very simple thing to fix it's one word in the complaint they didn't do it not only did they not do it they tried to come up with every single possible reason why they shouldn't have to i do think there's a good reason to doubt whether or not they can actually meet that requirement and you pursue thank you your honor simmering you've reserved two minutes that's your first of all we've done you know i've been accused of going outside the record i believe that this for again for forty two d requires us to plead and prove and that would be our burden to prove as as we move forward finally section four hundred and forty subdivision one of the real property law which i've given you and in my brief it lists a number of activities that require a license to brokers license identifying properties that match criteria is not listed as one of those as one of those items that requires a license if they had entered into negotiations on behalf of either the seller or the buyer yes then the licensing requirement would apply so there's nothing else i'll leave the rest of my you know at the risk of going round and round on this question you claim you have a life can you tell us again why you have explain why you've never played on any of the cajuns when the opportunities of reason when you know that that's your adversary's charge against you then lapse just doesn't seem