going back to the district courts first decision on this matter which was her ruling that my client breached an agreement of sale with s where it purchased the gasoline station in flushing sunoco heard on the station for many years my to my client had been the tenant we bought the station there was a provision that talked about not that the enviro track track i'm sorry was it was incorrect because the judge in finding that we were liable under the breach of contract found that there had been what we what the phrase is a new release of gasoline so we bought the station may if nine hundred ninety nine and she found that they heard been a new release of gasoline  judgment did the court find that there was a new release or did the court find that in viro track thought there was a new release but i think that that's that's that's the nut shell of why we think the summary judgment argument was incorrect because in one part of her decision she writes that whether there was a new release or not is immaterial issue a fact material issue  with respect to the never geisha act claim but with respect to the contract claim i read the summary judgment opinion as saying that the contract contains a dispute resolution mechanism which basically refers the matter to an environmental consultant selected by the parties there was such a consultant selected that consultant decided there was a new release and therefore under the contract you were obliged to take responsibility for that then she said but they also have this claim under the navigation act and as to that it's a disputed issue of fact because i may not agree with the environmental consultant and that claim requires that i find that there's a new release am i wrong in my interpretation of the summary judgment opinion the problem with that had we had  argued that the district court shouldn't accept the enviro track report as evidence of a new release for the breach of contract claim and in fact sunoco but you see the point is are you disputing that the contract makes it not just evidence makes it conclusive that it's referred to the agreed upon environmental consultant to decide who pays do dispute that that's what the contract means by that that the contract had to deter that environed had to make a determination as to whether there was a new release and the district court specifically said that she could not find whether there was a new release that you or i think you're you're not maybe i'm not making myself clear her interpretation of the contract was that it was conclusive tracks said there was a new release that therefore from purposes of the breach of contract claim she did not need to determine whether in fact she would make a finding by a preponderance of the evidence after a trial that there was a new release because that's a disputed issue of fact but it's not a disputed issue of fact is it that enviro track thought there was a new release is that a dispute is a disputed whether enviro track said there was a new release now and environ track and it did yes they did find that there was a new when are you disputing that as a matter of interpretation of the contract in viro tracks determination is conclusive and under the contract you are then supposed to pay yes that's the issue is that that sunoco would sell so we're not relying upon the enviros track report for that determination and we argued that it shouldn't have been accepted as an expert report and everybody agreed with us that's got to do with at the trial what i'm going back to is under the contract whether environ crack was good bad indifferent sloppy good experts bad experts got it right got it wrong the contract says that you referred this to an agreed upon consultant which environed track was and the answer that it finds determines who pays is that not what that's what the district court said the contract meant but that's that yes that's what the district court said with the contract and do you argue anywhere in your brief to us that that is not what the contract says were what we know now what we do argue is that under the standard for summary judgment is the court should not have granted summary yes because the consultants report the contract if we go back back to the contract the contract talked about was there a new release how much was the new release what with the additional costs of remediation that one might have only been a breach of contract claim no navigation right away you would have lost summary judgment on that breach of contract claim isn't that right i  don't believe so because the because the contract called for the consult not just simply to say whether there was a new release but it said how much was how much was there a new release and what we watched on liability it would have been found on summary judgment that there's a new release and that fact would have been established if there was only a breach of contract isn't right if there was just a breach of contract claim that it still should not have been to an interpretation of of how much because it wasn't just whether there was a new release is the how much the consultant did not do what the consult was supposed to do fact the consultant came up with certain allocations of responsibility which at the bench trial it was greed that that was not part of the contract the allocation of liability was something that council for son had asked for in  consultant supposed to say how much was the new release and what with the additional cost of contamination the consultant didn't do that the consult didn't say five additional gallons had been released ten gallons had been released used the methodology to make reasonable approximation of that based on its understanding of what the contamination looked like but that's what we were suing that in very tracked it but by granting summary judgment what that point we weren't able to bring that out before the issue of contractual why is this whole thing not mooted because there was a trial and there was a determination by the district court as a matter of fact that there was a new release and the district court then made its own analysis and reached its own findings so what's the problem you know why doesn't that solve everything because the des made the tammet determination as to new release under the navigation law and sunoco chose that they were only going to proceed in terms of damages for the contract so since we're fighting about the dollars that were awarded for we can't settle that one you can't go away and have a conversation and if the only difference is that they opted for contract damages and you're conceding the navigation act  then that should or should be worked out of all but put that aside for a moment under the navigation act claim is there something that the district court did that is clearly erroneous that they did that was clearly a rodeo the district know so you say you're saying the district court's fact findings with respect to the navigation act claim have to be upheld we're we're we're going back to the point that that at the time the bench trial was held the bench trial never should have been started with a you already live under the contract so we never should have gotten what difference does the how did that affect the trial then you still got to contest whether as a factual matter there was a new release and what the extent of the damages from the new release was right at the trial at the trial yes but as we ended up with since we're only fighting about contract damages it does make a difference that when we started the trial we're already liable under the contract what we're fighting about in fact is only the difference between the navigation act claim and the contract claim they opted for the higher damages and you're conceding to us that you're liable for the lower amount of damages no i'm not conceding that will live your life and all of that then what is clearly erroneous were erroneous as a matter of law in has to do with the the breach of contract and that there were several peripheral issues in terms of and so then if you did not appeal the navigation act claim you were conceding that you were a libel for an amount of damages that the district court found on the or not now were not considered his son did not choose to proceed with those damages they were given an election of which which amount do you want to take and right and it could be different because there are differences with respect to attorneys fees and other kinds of claims that could have been in there they pick one rather than the other so you're saying the navigation act if the contract claim is wrong you have to pay anything even though you were claim by the finding that you were liable on a completely different theory that you were expecting to appeal and win on later on big because then we could have determined then we could have attacked the enviro track report as to whether  they did what they were supposed to do and we would have shown that the report could not and should not have been the basis for breach of contract the terminations but we could not know where device the time we got to trial the issue is that the environment reports terminations contract liability had already been determined so as a result we were not able to go after that report and show to question  was no hearing as to where in viral track took the witness stand that you had there written testimony and you had written testimony in  go back to the district court's decision on summary judgment every statement that was said concerning whether there was a new release whether what happened after we bought the property every inference was given to the benefit of sunoco and in this case despite enviro tracks findings nobody was ever able to point to one instance where there was actually a spillage of gasoline after my client bought the property in fact there is circumstantial inference from the fact that there are regular soil samples being taken and the soil samples show basically something consistent for year after year after year and then suddenly in two thousand and two after your client is there there's a much bigger contamination why isn't that an adequate basis for the judge to make a factual finding that a new spill had taken place in two thousand and two and summary judgment no no no trial and summary judgment is a whole different different issue but i think we're in we just don't see eye to eye on what the issue was at that stage of the case i mean the issue there was what it in viral track decide whether it's right wrong or indifferent and that's what we should have been able to have a huge hearing about well before summary judgment on billet was issued right thank you thank you thank i don't believe we consider it a in arbitration proceeding as such and what's our standard of review of it now well the center of you under new york law is when the parties agree to have a dispute settled by a neutral third party that decision is binding absent a showing of bad faith or fraud or the failure to exercise on his judgment and that was cited  and i don't believe that issue has actually been argued on appeal is therefore waived but the reality is there was no such evidence of bad faith or fraud or failure to exercise on his judgment by enviro track when  determined that there was a new release in my second question is why did you have to will link between the statute i understand you can get the same recovery twice but if there's some elements that your breach of contract claim has and some elements of the the answer to that is i hadn't really thought of it that way we were given the choice by the court and we were happy to take the one the contract claim we felt that that had  answer to that continue happily i'll just i'll just note i think you hit it on the nail of the liability determination  summary judgment let's put aside the movement's question if you actually have a trial it was undisputedly how the contract is undisputed that the parties went through the process of appointing a neutral third party who is undisputed that the neutral third party determined that there was a new release undisputed that there was never any claim to that determination was made in bad faith or with fraud or the failure to exercise honest judgement and who made the the district court wasn't quite clear whether that was appropriate she also noted that there were two other one other approach that the invited track report mentioned she wanted to have a trial that involved that and so when we came to the trial we put on the invited track person who explained why he went down that road why it was effectively the equivalent of determining what the increased amount of responsibility was due to the newer lease and we had an expert testify that this is an appropriate methodology and what did the district court then the district where then accepted that methodology absolutely and did it for the avocational all claim as well and so as i hear today don't dispute the allegation on the navigational claim so they certainly can't dispute it on the contract claim on appeal if there are any i don't want to snatch anything from the jaws of whatever i'm happy to