petition for limited letters has been filed and that that is in that has been executed so so what took you so long in in notifying this court when your client  tatt passed away suddenly and unexpectedly on january th two thousand and nineteen he was survived by only three immediate family members one being hurt two of them being ineligible estate the estate is being handled by a separate attorney mr shoop in our and we have been working diligently with mr shoop and our over the course of the of the full year of two thousand and nineteen trying to trying to find a way to have someone to take over the estate alternately mr shoop and howard notified us that under his understanding of the surrogate's law that he was going to attempt to submit pam hamming the ex wife now the problem is that you're now so suggesting to us orally were present your honor we were although that may have not been submitted we were working diligently through that process alternately it was our understanding from the your honor there certainly was not a lack of candor we were attempting to address the the merits of the case and in the process we were trying to deal with these these housekeeping matters is quickly in diligently as an appropriate thing to say in the reply i take your point your honor i mean it does seem like a lack of candor and even now there is no nobody has been substituted at this point right it is well it is my energy your hope that maybe eventually the daughter will be  authorized to do this sort of unclear whether she will do it but she might be authorized at some point but that point hasn't been arrived is my understanding she has been authorized mr what's your basis for the understanding it is through our conversations with mr shoop and our mr sheep and are again the as the attorney for the estate has made all assurances that katherine has has received a limited letters and that she will be taking over the estate now that she of prosecuting this appeal yes your honor that's the limitation right that's all she's being appointed as administrator or correct your honor and i might wear these letters  you have it on good authority from a lawyer that there are these letters but you haven't seen them we did submit with our with our letter to the court the petition ok but so what's the status of the petition you're do you have any indication now what's the answer when where will you let us know immediately yes your honor and and i just want to say it may appear as a lack of candor most of the issue had to do with having to deal with the very disgruntled ex wife she kept going back and forth according to the conversations that i have had with mr shoop an hour on whether she was willing whether she was not willing and through this whole process catherine was still ineligible part of the problem is that at least for me is that court proceedings and that affects how i have how i think of the rest of these these proceedings for instance the brief states that the federal due process standards were and were never litigated service law and that the resolution of the th amendment due process standard of proof and quoting of course was not necessary to the to the finality of the liturgy of the appellate division and decision and then in your  reply brief it says this is that there is not a shred of evidence that the constitutional issue is decided by the th department and that the issue is necessary for valid and and final decision on the merits but when you read due process requires application of the preponderance of the evidence standard only when the penalty of dismissal is not accompanied by some added stick so when when we as a quarter read a brief which you know they can be differences of view on how to interpret something that that is understood but when there are statements that you know respectfully to you  mischaracterize explicit statements and holdings of a of a court it raises questions of credibility in our mind your honor with respect we understand the western districts decision addressed issues of constitutional due process as as applied rather it was the issue it were due process issues pursuant to section seventy five nowhere in the western district decision or key phrases mention such as th amendment liberty interest property interest these are all essential elements to any constitutional due process analysis and they are completely absent from the western district decision so that gave us a good faith understanding that the western district did not weigh those considerations to be strictly applied that there is been no prejudice to the city of candidate in this process again we had made all diligent efforts to dealing with the state's attorney who was working with a very unquote operative ex wife and as mr heron indicated we thought that these issues we had hoped that these issues would be resolved prior to filing of the brief the reply brief we had hoped that they would they were not and then in addition just to indicate the level of back and forth in the mix up from mr schumann how are we to until very recently realized that they had a band in the course of of of replacing or substituting the ex wife and then they have changed complete course due to serious loss section one thousand and one dollars b and then instead of going with katherine so we have made diligent efforts to work with the estates attorney and be due to the circumstances the state attorney was not successful in resolving this prior reply brief we apologize for any for it for any appearance of lack of candor but at the end of the day we have attempted to resolve this we have attempted to be  it is with as much candor as possible and we respectfully request that you the you've read the motion thank you thank you nd here on behalf of the city john goodwin and nancy abdullah and to address the pending motion st the employees understand that this court has a great deal of discretion in matters such as this but this is a relatively unusual case we filed with this court a statement of death back in february two thousand and nineteen which was several weeks after the notice of appeal was filed several weeks after the death of mr  until approximately a month before this court scheduled oral argument there was no mention whatsoever from the appellant about the death acknowledging the death or even responding to our argument in our opening brief that the appeal should be dismissed of substitution it even seems to me that the appellant didn't oppose our motion made in december to dismiss they certainly put in an additional supplemental submission to the court on january th but there is no in my view actual opposition to the motion that we made on december th to dismiss their appeal at the end of the day honors and spend a year we suggested the death of the record we argued in our brief that the appeal should be dismissed for this basis and there is still no letters of administration that have been issued and i believe the papers that were found by the appellants attorneys on january th demonstrate that miss marin ted has been eligible since july already submitted their opening brief to this court we respectfully request a dismissal with prejudice and contrary to counsel's assertion it would severely prejudice the city and the other at pelleas we have acted diligently at all steps to there was no need for additional briefing with respect to the merits of the appeal and wouldn't be any i don't see any reason for additional briefing necessary if there is an administrator at this point we would still argue that there has process under the th amendment was violated by the use of the substantial evidence standard at his civil service hearing as opposed to the preponderance of the evidence standard this issue was raised it was litigated extensively before the th apartment and it was expressly rejected unambiguously by the th apartment the th apartment does not use the terminology property right the term th apartment does not use the terminology liberty interest but that has absolutely no impact on the collateral estoppel effect of the th apartments decision mr marion ted argued these issues extensively in his brief we argued these issues and oral argument and the th apartment rejected that this court and the mcbride case said the ultimate propriety of the police officer in that case termination had been resolved by the lower by the state court in the article seventy eight here the ultimate propriety of mr maraton terminations both under article seventy eight dollars substantial evidence standard and the federal constitutional th amendment standards were already decided by the th apartment the appellate division and there's really been no argument by it's frankly difficult for me to extrapolate a step that they could have taken before the th department in the article seventy eight proceeding that would have been a more full and fair opportunity to address this issue before that  plaintiff is attempting to use that argument to almost turn this appeal into an appeal from the th apartment's decision but respectfully an one thousand nine hundred and eighty three action is not a mechanism for a plaintiff who was unsuccessful in an article receiving to essentially appeal to federal court that decision because it was fully litigated it was decided against the petitioner and he had a full and fair opportunity to litigate that is now binding and collaterally it stops him from attempting to raise that issue before this court and won't belabor your honour's with our arguments regarding the plaintiff's misunderstanding of the th department's decision we believe it's very clear that this issue was clearly that a gated in an abundance of caution the district court analyzed the property interest argument because by using the word stigma in the th apartments decision that was clearly and unambiguously a rejection of the liberty interest argument although the property interest argument was implicitly rejected by the th department the district court in an abundance of caution also analyze the property interest argument and we respectfully request that of this court get past what we believe is the issue of collateral estoppel that there's absolutely merit no merit to mr mayor intense attorneys argument that he was entitled to a preponderance of the evidence burden of proof the supreme court and this court have already decided what process is due to a public employee who is terminated from a position in which he has a property interest here we've assumed for purposes of argument based on this court's prior case law there was such a property interest the worker is entitle to notice of the charges an explanation of the employer's proof and an opportunity to explain his side of the story that's it your honour's respectfully and if the united states supreme court and louder male or this court in the court of decided to impose  requirement of a standard of proof or burden of proof we respectfully that this court would have done so at that time there is no such requirement here mr maraton was served with written charges he answered them he was served with another set of written charge amended the st he answered those there was a fall adversarial hearing at which the city presented its proof mr maraton was represented by counsel the same counsel he is represented by on appeal they cross examined the city's witnesses and presented proof of their own they were post hearing submissions to the hearing officer and then a written memorandum from the hearing ops or followed by a folly litigate an article seventy proceeding and it's our position therefore that even if this court gets to the due process argument that regardless of whether it's viewed as a property interest claim or liberty interest claim mr mayor in tennessee more than he was constitutionally required to receive understanding how did you have arrived at that understanding based just based on the way that the that the letter from the corps read that prior to argument on the merits that we would be discussing that issue give you  couple of minutes on nothing thank you i appreciate your honor your honor justice name please the court in addition to the motion thank you and post germination matthews v eldridge is applied in addington v texas establishes a continuum of three separate standards of review for ponder and see the evidence being the minimum standard convincing an intermediate and beyond reasonable doubt punting on these issues essentially stated that that there was that substantial evidence was the standard it completely fails to address the traumatic disruptions in personal and economic life that come from these sorts of charges were dismissed four of them were only upheld by substantial evidence not preponderance of the evidence as far as the post terminations side of things larger mill states that even assuming that section seventy five dollars on its face does not grant full pre term anation hearing that there must be a full post germination judicial review and in this case much of the stigma that was experienced occurred post germination that following mr marron test germination news stories broke across the internet whether it is usa today the national fire service website social media it reached as far as guam so when we say that mr marron tatts that that mister denial of future job opportunities and damaged reputation reached a global level it's no overstatement that alternately the th department and again the western district they discussed  d at a moment's notice that ultimately a registry is does not fully encapsulate the issue of stigma the th department did not address this at all there was no full judicial review of the argument was made and for the foregoing reasons not only because not only because i assume from before you get to step down i assume you you sought review in the new york court of appeals of the th department's decision the new york state civil service law is not the same question is whether due process was afforded under constitutional standards that this is the entire purpose of section one hundred and eighty three and as as reflect safer for these reasons both because respondent has not satisfied its burden of establishing all the elements of collateral estoppel in addition to mr not receiving a full pre term nation or phone full post germination due