and the need for the safety of the adult homes of the residents to do what they did it's a disingenuous argument because there was a specific regulation and a specific statute that we've can i back you up know what i understand to be part of the district court's problem with this and that is that you essentially under what you're suing for a taking right yes and under williamson you haven't done or taken out of what steps within the state to process available to yes your client to obtain that compensation and therefore at the time the case was before the district court it was not ripe for analysis as a takings claim under the fifth amendment do i pretty much that it was right or yes sorry that it became right because of the steps that were taken well i understand that adequate steps weren't taken that were taking i'm not sure you saying we're we're not we're saying that they were taken they were yes this case is right i understood that you didn't get through the state process well they attempted that they brought that action in the state supreme court right and the defendants argued that the state supreme court did not holding was that the statute of limitations had passed and i have comments on that and the second one was again the defendants argued there was no subject matter jurisdiction that's what the court of claims held and that's the predominant  holding i would argue it in what do you mean the predominant hold they held they didn't have subject matter jurisdiction in that that would be as important or more important than the decision that there was a lack of statute of limitations for a court to say that it does not have subject matter jurisdiction i believe is is the most significant decision that a court could make and that's what the quarter claim said regardless of that the court said you were just too late coming here so where they had some sort of a heads of big managers direction you were still out of court well we argued and in our brief we pointed out as a matter of fact that the statute of limitations has not passed and i will need it we can see that that argument was not made in the court below and and that apparently no one picked it up i would suggest as a matter of law though that we should be able to argue that and the point of that why the statue of limitations did not run is because very before the client was even given possession so while the cause of action would still accruing they brought the district court action the first action and forty one days after they brought that action the defendants then gave them possession so that lawsuit continued and then there was an appeal and while the appeal was pending the action of the client brought the action in the state supreme court and under the c p l law are during the within i believe six months of an appeal you have a relation back to bring the lawsuit in this case they actually start of the lawsuit before the first appeal was taken so they went to the supreme court it was still timely when the supreme court transferred to the court of claims it was related back the time period again so all along all the steps everything was timely because the client acted very quickly in bringing these various actions the read this really with you that that will assume that we deem that argument forfeited because it was not me jurisdiction if the quarter claimed did not have jurisdiction and said so in its opinion in fact really matter is that the client did not have recourse it did not have an adequate state remedy now has to be a reasonable certainty and adequate state remedy now i would argue that williamson has has been transformed in gone so far that judge paris even cites an opinion which states that even if it's not possible to have a remedy you can't bring such a suit now i want to point out to the court and this was one of the points i wanted to make is that in forty days from now the u s supreme court is going to hear case could very well be determinative or influential on this case assuming soon that otherwise is the taking why why was it taking forget the exhaustion issue but what i'm asking the court to do and i made a motion to hold this appeal in the band was the not i described before we perfected the appeal with leave the request to the bench no wonder i understand what you asked for i'm getting to the ultimate question so that we can avoid this is austin issue that's pending before the supreme court and i'm asking you why is this a taking but there's no question about the taking judge paris look it was a take a license what's the until you have a license what's that judge perry specifically h that there was a case he said that in the simplest form possession was taken now the reason it was a taking is that when long hills receivership and the state was mandated and this is ignored by the state they would mandated by regulation and i will cite that ating n y c r r section four eight five five and that when long hill right was the right of possession which they did when the court terminated it it was the states the state was mandated to terminate their license what happened with long hill is they lost sight control and the psych control they lost was precisely the reason why they didn't give my client the certificate when the prior owner who was for close added the claim that by the government in a way without compensation it's where where compensation was due he the judge specifically point me to the language i don't have the language where he says it was a taking what he says is that there was a property interest he dismisses the case without prejudice to determine the issue of rightness the issue of rightness would have no bearing on the case it would have no relevancy if there wasn't a finding of a taking the substance jurisdictional because he's not a weed the courts don't even look at cases that are ripe well that we don't get there don't let that not all the circuits agree with that well ok now you have gone two minutes over your time but we're going to still give you the two minutes you've asked for in rebuttal thank you very much and we're going to hear from  the supreme court grants cert and then decides that there is no exhaustion requirement anymore we're back to square one we're not your honor because this court can affirm on numerous alternative grounds and  the merits this court can affirm the district court's merits holding on three different grounds the first is that the his actions just do not constitute a taking under any circumstances d o h a was faced with a very unique situation where there was a one hundred bed adult home that everybody wanted to remain open the plaintiffs wanted to operate this home at the time these circumstances happened there was only one licensed and qualified operator what do you h did was allow that operator to keep operating the facility to avoid closing it down and having to move all of the residents while the plaintiffs applied for a license while he awaits review that application when it grants when the first letter in this waged on october eleventh two thousand and six the plaintiffs had not even applied for a license at that point the plaintiffs only applied for their license in november two thousand and six what do you know waged did here was act reasonably in to pay the planes of rent all due wage did was authorized long hill to continue the operation deal which did not preclude the plaintiffs from suing long held for and for trying to negotiate a lease with long held by which long he would pay them around or from taking any legal action to eject long hill the planes have subsided no authority where an agency a government inaction to interfere in a dispute between private parties constitutes a taking and the third ground on which this court may affirm on the merits is that the plaintiffs actually do not have a protected property right and the exclusive possession occupancy of this property i understand that the district court found such a right but that that holding was their o that such a right could be inferred from the face of the complaint is immaterial to whether there has been a taking the existence of a property right as a predicate to takings claim but it does not by itself satisfy that all of the elements of a takings claim so even if you assume that the district court found that there was a property right here we would submit that bad holding is incorrect the property right the district court found is an exclusive possession and occupy n c but this is a very regulated field with as an adult home repeatedly explained to the plaintiffs a property owner does not have a legal right to participate in or direct the operation of an adult home or receive any revenue from the operation of an adult home without a license from c o h it is under speedo that during this time period the plaintiffs did not have a license from dio age and thus they could not have had a property right in any revenues derived from other alternative grounds but complained fails to plead personal involvement for three of the four defendants and even if the court were to find a constitutional violation qualified immunity applies here because the plaintiffs have not cited a single papers thank you you thank mr young point i'm trying to make iran or and this is that there's a disingenuous argument being made under the regulation i cited it was mandatory for them to terminate the license along when they lost the right of possession so what was going to happen to the people at that time but not all but then what happens then is social services law section four six one dash f four a when the department revoke  is designee should not be appointed receiver to take charge of the facility what should happen is they had to go back to court and request that a receiver be appointed this is what should have happened they took it upon themselves instead to install someone into the premises for two years without any judicial oversight and without no proof any provision being made for compensation comp compensation in subsection b of that law  residents we're seeking the ranks that were under the existing lease of the prior owner and under social services law the same section subsection b it specifically says that the commissioner has to set a front of us is the takings only takings and again i want to address that so the supplemental state law claims that you've alleged to have just gone by the bar yet he dismissed them and you're not pursuing getting those are the ones that were attempted to broaden the supreme