nonny heard the words we don't want you here we don't want your kind here or any little niggers here those were the words that you know this is one of a series of thousand dollars by the th department and has it been paid yes the causes of action here that were dismissed in error by the district court include section one thousand nine hundred and two which prohibits private conduct which interferes with the use of property as well as the ability to and gresson egress danio code nermeen and his hosts the hogans were subjected to that conduct could you be very specific about the dates on which these incidents that have been alleged occurred to my reading of the complaint suggests that we were when the maybe seven different events occurred could you give us a chronology off the top of my had i cannot but i know that there was reference points for example there was reference to the july  matter there were arrest records and court of the years the years are important because we are talking about a period of at least four years and maybe maybe six different events over the course of that time in which there  some ambiguity about what was said and even but even accepting what was said is true as we have to and if you have a motion to dismiss the described incidents were sparse and it wasn't clear to me that considered together over the course of four years that they would establish a racially discriminatory motive for interference with enjoyment i was having difficulty understanding that so that's why i'm asking you to be specific about when denny kootenai any heard words with these events occurred i'd have to go back and look at the record for the specific date but i know that it was the summer of two thousand and six or seven so it was during that time that he st started coming up to the cottage and then it was thereafter that they kids were attacked by the boat i with mister with mr hogan and mr i with mr rose and mr van de water now there are records there are criminal records that reference the dates because certainly the police were called period are we talking about i don't know off the top of my had your honor two thousand levon what was the complaint filed the complaint i believe this one was filed in two thousand and eleven your honor that this was five year period this was this was after danny had been subject and jack the two children had been subjected to that but i think that to call the incident sparts sparse overlooks the seriousness is of the incidence because the expression of racial animus and the bias in such a harsh and derogatory fashion i think in  conduct even though its application to such conduct in the present context is without established precedent so because section one thousand nine hundred and eighty two was found it didn't and originally part of section one something that indicates this wasn't just a dispute over property this was an issue of race danny heard himself referred to as a fresh air child they called the police on his sister in the lake because she was pulled the report was polluting  they insist this declaration but how does he know what's the evidence of that that they said that to the police was their testimony from the police officers he heard them say that what i was from mr hogan he heard them say that to the police police came and reported that they had gotten a report that he was polluting the lake when the day sister denning was in the lake we stalled him correct what was said to them correct correct and for purposes of the motion to dismiss  judgment we have to accept that is true the significance of what occurred in two thousand and five was that is when danny started visiting the lake with the hogans that culminated in that expression of direct and honest i'm biased against that it was in two thousand and five and mr hogan makes that assertion i believe in his affidavit and pardon litigation over an easement now not before two thousand  there was subsequent this is part of this is part of this case was that they interfered with his access to his property and that was the included the abuse of process claim which we contend was sufficiently pled and had sufficient judge's decision that in any event was a judge's the twenty correct correct but but that's part of the problem here i mean the the that doesn't have anything to do with any it doesn't have anything to do with jack or bath and those plaintiffs in this case were not permitted to have the finder of fact make a determination as to whether or not they were subjected to this treatment and then at the t have anything to do with mr hogan was sued by the west he did not see them as a result of that litigation mr vander water stipulated to the backlot line which then they started can't judicial notice of the hippies corpus petition which was brought with respect to the speedy trial claim and tonight and this court said that he needed to plead guilty in order to assert a speedy trial claim plaintiffs section nine hundred and eighty two dollars claim are indeed sparse and in fact with respect to defendant bros there really are no plaintiffs there's no allegation that defendant rose uttered any racial epithets at there before you get to that issue that the district court decided based upon a legal grounds that section nine hundred and eighty two does not apply to use in enjoyment of land and so there is no authority for that but in the papers it's it's clear that the supreme court  wrong on that legal issue by under these circumstances it is a mix question of law in fact because in in the cases that that you've just referred to that plane test cited in there apply the circumstances were very different in those o if you have to take that his version of events is true if in fact there was an effort to run over these children that he intervened and he was beaten up and the word was referenced during the attack we don't want these individuals using the n word why wouldn't that be sufficient for one thousand dollars you to claim with someone says after that happened and there's other things they describe but that's obviously the key event after that we stopped that's the allegation you're on to add that i mean you said that there's no allegation and now you're saying that and someone up ordered him saying i don't know if was mr hogan by the someone said he said we can do anything we want right is was there something the record that he said that i  contradicting that but mr hogan himself testified that mr rose did not actually do anything during that and i he did not utter any racial epithets  the plaintiffs did in fact continue using and enjoying their property they purchased additional property after that incident i mr oakley tonight his sister did not start going to the property  with the hogans until after that incident had occurred the evidence demonstrates that the plaintiffs did continue using and enjoying their property as they had previously but as to mr ro may please the court edward melvin with barclay payment of a half of the louis county defendants the police and today just like you confirming clarify for the court that my clients which are the deputy sheriffs layme further that that was the basis for the judge's determination you know i'd like to go look at the fact that what mr hogan is claiming that the defendants agree with the neighbors to force him out of the county and one of the possible the neighbors get a pass so if you look at that there's really there's no improper purpose to gain collateral objective she's stating to arrest him and in fact that point in time there was a pending holmes claiming that they were filing charges against him to get him to leave the county mr pencil and saying because of you i have all these complaints to deal with i'm tired of dealing with all of these complaints and like that need to go away but he never said that but i think cept it is true for relationship between entitling between what these kids beget visiting the property and what medication began it is well the west litigation occurred some time after that but the ex involved be coming to the property in or about twenty million sixty two thousand and seven but that's before before the litigation but it's not before mr hogan began doing the acts that led to the west all i'm i'm not saying that at all judge but i'm not what was there was much more than that wasn't it was removing the plaque as ms bachmann indicated it was also mr hogan built a fence that effectively locked the west out of their water supply their bathroom their shower they had access to it only through hatch doors and mr hogan the evidence in the west trial was that he had constructed a fence and actually locked those bilko doors because he said that they were on his property effectively preventing them from using their property that's my understanding of what led to the west action in the beginning there were also allegations of and i think were proven of the west complaint and action and trial which i believe is set forth in this record i can't give you the exact page of that one as a sound and asking for just if there's a direct reference by your client to receive during less important that incident because if there's an allegation that he said that during the incident timing is important i was eight to two responses as the time his report important from this standpoint what judge kahn had before him was the plaintiff interact atory responses in which they were asked what racial what didn't discriminate discriminatory acts that mr banta water commit that were racially motivated they gave us two thousand five hundred and fifteen of those occurred before in time before mr could any was ever there if those other ones may not be racial this one if if it's proven that he said that then it's clearly a racial incident but the timing again is critical here because what they're saying is that there were there was an amiss here between the parties well before mr o'quinn ianni was ever on the scene and as far as that particular incident judge if we accept that is true mr banta words tonight with that is true for the sake of that motion the next step is here at judge con didn't reach because he felt he didn't have to what the next step is where's the evidence that you were discriminated against that you were unable to use your property they give this  ed to testify as to what mr cooney i knew his rationale was that i wouldn't think that would be that would be taken or given any weight all right thank you very much i think we have the arguments they have two incidences regarding the coins one is that they repeatedly swerved to be a quote on an incident i don't know which summary was saying who you have in there when they had in the car that was one and then there's this swerving there's general allegations that there were swerving by all parties and it's noted that this is we're talking about a one lane gravel road that services camps and some permanent houses are out there throughout that whole time to people  that any of those even the talking about the time from when this young man was up at the camp is one week out of the year there's allegations of swerving and cars being coming into almost contact with each other throughout all these years i don't think again on its face or any an the swerving the galley there's a very high standard new york state for the claims to go forward and irrespective of they didn't put any medical proof on which the th department these sort of tie that to conduct but they do say a special circumstances but that's separate for fault and that special appendix no what's the date or the six i don't have the date but i would like to offer your honor this i will submit a chronological outline for your honor that is set forth in the record to clarify those dates for you we made the property under their lease available to black social guests it was alleged that the defendants were that the defendants evicted them in retaliation for the appearance of negro gas on the walker premises in order to prevent sorry just saying yes this is a series of litigation well i don't think that it's a series of litigation i think that mr hogan in the litigation in terms of the malicious prosecution in the false arrest is standing his ground your honor which he has a right under the law to do the northern district of new york northern district of new york that's correct and when judge wassim observed during her comments that the litigation would continue part of the reason for that is that the survey that was accepted at trial by judge rothstein most of the back boundary line back in ninety six feet so that the allegations that he was