Hughes v. City Of New York

UNITED STATES DISTRICT COURT DDOACTE # :F ILED: 9/21/ 2021

SOUTHERN DISTRICT OF NEW YORK

VARDELL HUGHES,

Plaintiff,

1:18-cv-09380-MKV

-against-

MEMORANDUM

OPINION AND ORDER

THE CITY OF NEW YORK, NEW YORK CITY

GRANTING MOTION FOR

POLICE OFFICER STEPHEN MALVAGNA,

SUMMARY JUDGMENT

JOHN CAMPANELLA, LIEUTENANT CARLOS

AND PARTIALLY GRANTING

FABARA, AND OFFFICERS JOHN DOES 1-5, in

MOTION FOR SANCTIONS

their individual and official capacities,

Defendants.

MARY KAY VYSKOCIL, United States District Judge:

Plaintiff Vardell Hughes asserts claims against Defendants the City of New York, Police

Lieutenant Carlos Fabara, and Police Officers Stephen Malvagna and John Campanella

(collectively, “Defendants”) under 42 U.S.C. § 1983 and New York law for false arrest, malicious

prosecution, failure to intervene, and respondeat superior liability. Defendants have moved for

summary judgment, seeking dismissal of all of Plaintiff’s claims (Defs.’ Mot. [ECF No. 84]), and

Plaintiff has cross-moved for spoliation sanctions (Pl.’s Mot. [ECF No. 91]). For the reasons

discussed below, Defendants’ motion is GRANTED and Plaintiffs’ motion is GRANTED IN PART

AND DENIED IN PART.

BACKGROUND

A. Factual Background1

On the night of July 14, 2017, Plaintiff, his brother Larnell, and Selfjustice Gibson were

involved in a street brawl with Gamaliel Arroyo and his friends in Chelsea, Manhattan. What

1 The following facts are taken from the parties’ Local Civil Rule 56.1 statements and the underlying record.

(Defs.’ 56.1 Statement [ECF No. 86]; Pl.’s 56.1 Response [ECF No. 89]; Defs.’ 56.1 Response [ECF No. 100].)

transpired before and during the fight is hotly contested. The Defendant officers responded to 911

calls and arrested Plaintiff, Larnell, and Gibson. As explained below, the dispositive issue on

Defendants’ summary judgment motion is whether Defendants had probable cause to arrest and

charge Plaintiff. The following statement of facts describes the competing accounts of Arroyo and

the Hughes brothers, then outlines the incident from the perspective of the Defendant officers.

According to Arroyo, Plaintiff, Larnell, and Gibson approached Arroyo and his five friends

as they were walking to a deli. (Pl.’s 56.1 Response ¶ 7.) Larnell threatened Arroyo that he was

going to “knock [his] head off.” (Defs.’ 56.1 Statement ¶ 12.) Then Larnell and Plaintiff attacked

him. (Id. ¶¶ 13, 15.) Arroyo claims he was “punched and kicked “everywhere, my face, my

stomach.” (Id. ¶ 18.) Arroyo’s friends fled, except for one who “squared up” with Gibson. (Id.

¶ 17.) Arroyo tried to flee into a store but was directed to leave. (Id. ¶ 20.) Arroyo left the store

and continued to fight. (Id. ¶ 20.) Arroyo testified that “[a]t that time every body [sic] was

throwing trash cans and garbage because I think my friends came back.” (Id. ¶ 21.) Police arrived

and broke up the fight. (Id. ¶ 23.)

According to Plaintiff, Arroyo and another man approached Plaintiff and Larnell after

Plaintiff handed Larnell some cash. (Pl.’s 56.1 Response ¶¶ 43, 150.) Arroyo pulled a knife and

attempted to rob Plaintiff and Larnell. (Id. ¶¶ 1, 12–14, 43.) Larnell responded, “I’m not giving

you anything.” (Id. ¶ 150.) Arroyo swung the knife at Larnell, grazing him (id. ¶¶ 18, 21, 45–46),

so Larnell punched Arroyo (id. ¶¶ 49–50). Then approximately ten people attacked Plaintiff from

behind. (Id. ¶¶ 51–53.) “Arroyo and his buddies had the upper hand throughout the fight,”

Plaintiff testified. (Id. ¶ 18; see id. ¶¶ 53–65.) During the fight, the individuals threw bottles and

other trash at Plaintiff and Larnell. (Id. ¶ 65.) Arroyo and Larnell fell into nearby tree shrubs as

they were fighting. (Id. ¶ 68.) Plaintiff observed Arroyo on top of Larnell, so he got on top of

Arroyo and began punching him. (Id. ¶¶ 67–71.) An unidentified man sprayed Larnell in the face

with mace. (Id. ¶ 72.) Plaintiff punched the man and chased him off less than half a block away.

(Id. ¶¶ 73–74.) As police arrived, most of Arroyo’s group fled. (Id. ¶¶ 17, 156.) At that moment,

Plaintiff was heading “back to the area where Larnell and Arroyo were tussling.” (Id. ¶ 23; see id.

¶¶ 73–75.)

Defendant officers Malvagna and Campanella were on patrol that night when they received

several radio transmissions regarding a large street fight. (Pl.’s 56.1 Response ¶¶ 86–89.) The

dispatcher provided details about the fight, as reported by 911 callers. (Id. ¶ 88.) One radio

transmission alerted the officers to fifteen people fighting, another to ten people fighting, another

to ten people fighting and dispersing. (Defs.’ 56.1 Response ¶¶ 152–54.) There were no reports

of weapons being used. (See generally Marquez Supp. Decl. Ex. E [ECF No. 87-5].)

Officers Malvagna and Campanella arrived on scene within minutes of the first radio

transmission. (Pl.’s 56.1 Response ¶ 90.) Officer Malvagna testified that he observed Plaintiff

and Larnell on top of Arroyo in a “planter,” or “elevated flower bed.” (Defs.’ 56.1 Statement

¶ 93.) Officer Malvagna separated Arroyo and Plaintiff. (Id. ¶ 100.) Plaintiff, however, claims

he was not near Arroyo when the police arrived (Pl.’s 56.1 Response ¶¶ 93, 100) but admits that

at one point he, Larnell, and Arroyo were fighting in the tree shrubs (id. ¶¶ 68–71).

Officer Malvagna spoke to Arroyo and Plaintiff “to figure out what exactly happened.”

(Id. ¶¶ 101–02.) Officer Malvagna testified that Arroyo informed him that he was physically

attacked by Plaintiff, Larnell, and Gibson after a verbal dispute. (Defs.’ 56.1 Statement ¶¶ 103–

04.) One of Arroyo’s friends corroborated Arroyo’s account—that the Hughes brothers were the

initial aggressors—to Officer Malvagna. (Pl.’s 56.1 Response ¶ 108.) According to Officer

Malvagna, Arroyo was upset, loud, and appeared to be injured: his shirt was ripped, his back and

head were scratched, and his lip was bloody and swollen. (Defs.’ 56.1 Statement ¶¶ 105–07.)

However, Larnell testified that Arroyo had no noticeable injuries. (Pl.’s 56.1 Response ¶ 105; see

Joubin Opp. Decl. Ex. B ¶ 10 [ECF No. 88–2].)

Officer Malvagna testified that Plaintiff and Larnell told him that they were attacked by

Arroyo and his group. (Defs.’ 56.1 Statement ¶ 109; Marquez Supp. Decl. Ex. C 35:10–37:6.)

Officer Malvagna claims Plaintiff and Larnell never said that Arroyo’s group demanded money.

(Marquez Supp. Decl. Ex. C 37:7–37:10.) But Plaintiff and Larnell both testified that they told

Officer Malvagna that Arroyo and his friends demanded money from them. (Pl.’s 56.1 Response

¶ 109; Defs.’ 56.1 Response ¶ 159; Marquez Supp. Decl. Ex. B 31:15–31:18, 41:2–41:10; Joubin

Opp. Decl. Ex. B ¶¶ 12–13.) Officer Malvagna testified that he did not observe injuries, scratches,

or marks on Plaintiff (Defs.’ 56.1 Statement ¶ 110), while Plaintiff testified that he had visible

scratches and marks on his face, arms, and legs (Pl.’s 56.1 Response ¶ 110).

Officer Malvagna spoke with several witnesses. Two witnesses told him that Plaintiff,

Larnell, and Gibson had “attacked” and were “beating up” Arroyo. (Defs.’ 56.1 Statement ¶ 112;

Marquez Supp. Decl. Ex. C 49:9–50:15.) A third witness told him that Plaintiff, Larnell, and

Gibson started the fight. (Defs.’ 56.1 Statement ¶ 113; Marquez Supp. Decl. Ex. C 62:6–62:10.)

Most of Arroyo’s friends refused to speak with police and left to avoid getting arrested. (Pl.’s 56.1

Response ¶ 157.)

Officer Malvagna testified that after hearing from the parties and witnesses, the police

decided to handcuff and arrest Plaintiff, Larnell, and Gibson. (Defs.’ 56.1 Statement ¶ 113.)

Plaintiff, however, testified that police placed him in handcuffs before he gave Officer Malvagna

his side of the story. (Pl.’s 56.1 Response ¶ 113; Marquez Supp. Decl. Ex. B 34:5–34:16.) Officer

Malvagna testified that he did not know who made the call to arrest Plaintiff, though he believed

all officers reached the same conclusion as to what had happened. (Pl.’s 56.1 Response ¶ 116.)

Plaintiff, Larnell, and Gibson were transported to the 10th Precinct. (Id. ¶ 118.) Officer

Malvagna testified that he did not observe any injuries on them resembling a knife wound. (Defs.’

56.1 Statement ¶ 120.) A photograph of Larnell’s arm reflects a minor cut that Larnell claims he

sustained when Arroyo slashed him. (Pl.’s 56.1 Response ¶ 120; Joubin Opp. Decl. Ex. B ¶ 6 &

sub-Ex. A.) Plaintiff’s mugshot shows minor swelling around Plaintiff’s left eye. (Marquez Supp.

Decl. Ex. J [ECF No. 87-10].) Officer Malvagna took photographs of Plaintiff, Larnell, Gibson,

and Arroyo on his NYPD-issued smartphone. (Marquez Supp. Decl. Ex. C 52:3–53:6, 59:3–

59:13.)

Plaintiff was issued a desk appearance ticket. (Pl.’s 56.1 Response ¶ 122.) Officer

Malvagna was designated as the arresting officer and signed the criminal court complaint. (Id.

¶¶ 121, 123.) Plaintiff was charged with assault in the third degree, N.Y. Penal Law § 120.00(1)–

(2), attempted assault in the third degree, N.Y. Penal Law § 110, and harassment in the second

degree, N.Y. Penal Law § 240.26(1). (Id. ¶ 140.) Plaintiff’s prosecution was later dismissed on

speedy trial grounds pursuant to New York Criminal Procedure Law § 30.30. (Id. ¶ 142.)

On January 8, 2018, Plaintiff filed a Notice of Claim with the New York City Law

Department. (Joubin Supp. Decl. Ex. A [ECF No. 92-1].) The Notice of Claim summarized the

legal claims now alleged in this action; stated the date, time, and place of Plaintiff’s arrest;

identified Officer Malvagna specifically; and provided the docket number for the criminal case

against Plaintiff. (See id.) Ten days later, on January 18, 2018, Officer Malvagna exchanged his

NYPD-issued cell phone for a new one, and consequently, all of the data, including the

photographs of Plaintiff, Larnell, Gibson, and Arroyo, were erased. (See Marquez Supp. Decl. Ex.

C 34:10–34:17; Joubin Supp. Decl. Ex. C [ECF No. 92-3].) On July 14, 2018, the NYPD Tape

and Records Unit deleted the 911 calls and radio transmissions, pursuant to the 365-day audio

retention policy of the NYPD. (Joubin Supp. Decl. Ex. E ¶¶ 3–5 [ECF No. 92-5].)

B. Procedural Background

Plaintiff commenced this action in October 2018 by filing the Complaint, (Compl. [ECF

No. 1],) and amended his pleading twice thereafter. (First Am. Compl. [ECF No. 17]; Second Am.

Compl. [ECF No. 28].) The Second Amended Complaint asserts causes of action for false arrest,

malicious prosecution, failure to intervene, and municipal liability under Section 1983 and for

malicious prosecution, unreasonable search and seizure (i.e., false arrest), negligent hiring and

training, and respondeat superior under New York law. (Second Am. Compl. ¶¶ 69–100.)

At the close of discovery, Plaintiff acknowledged in connection with a pre-motion letter to

the Court that he cannot establish a Section 1983 claim for municipal liability (the Monell claim)

and that, because he failed to timely file a notice of claim, he cannot bring state law claims for

false arrest and that his negligent hiring and training claim should be dismissed for lack of

evidence. (Pl.’s Letter Dec. 11, 2020 [ECF No. 82], at 3.) The Court deems these claims

abandoned.

Defendants have moved for summary judgment on Plaintiff’s five remaining claims: false

arrest, malicious prosecution, and failure to intervene under Section 1983 and malicious

prosecution and respondeat superior under New York law. (Defs.’ Mot. Summ. J. [ECF No. 84].)

In support of their motion, Defendants filed a memorandum of law (Defs.’ Br. [ECF No. 85]), a

Local Rule 56.1 Statement (Defs.’ 56.1 Statement [ECF No. 86]), and the Declaration of Jorge

Marquez (Marquez Supp. Decl. [ECF No. 87]). In opposition, Plaintiff filed a memorandum of

law (Pl.’s Opp. Br. [ECF No. 90]), a Local Rule 56.1 Counterstatement (Pl’s 56.1 Response [ECF

No. 88]), and the Declaration of Cyrus Joubin (Joubin Opp. Decl. [ECF No. 89]). In reply,

Defendants filed a memorandum of law (Defs.’ Reply Br. [ECF No. 98]), a Local Rule 56.1

Counterstatement responding to Plaintiff’s additional assertions of fact (Defs.’ 56.1 Response

[ECF No. 100]), and the Declaration of Jorge Marquez (Marquez Reply Decl. [ECF No. 99]).

Plaintiff has cross-moved for spoliation sanctions concerning Defendants’ failure to

preserve the photographs on Officer Malvagna’s cell phone, the 911 calls, and the radio

transmissions. (Pl.’s Mot. Sanctions [ECF No. 91].) In support of his motion, Plaintiff filed a

memorandum of law (Pl.’s Br. [ECF No. 93]) and the Declaration of Cyrus Joubin (Joubin Supp.

Decl. [ECF No. 92]). In opposition, Defendants filed a memorandum of law (Defs.’ Opp. Br. [ECF

No. 101]) and the Declaration of Jorge Marquez (Marquez Opp. Decl. [ECF No. 102]). Plaintiff

filed a memorandum of law in reply. (Pl.’s Reply Br. [ECF No. 104].)

LEGAL STANDARDS

A. Summary Judgment

“Summary judgment is appropriate only when, ‘the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” Ya-

Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 69 (2d Cir. 2015) (quoting Fed. R. Civ. P. 56(a)).

However, “the mere existence of some alleged factual dispute between the parties will not defeat

an otherwise properly supported motion for summary judgment; the requirement is that there be

no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).

A fact is material if it “might affect the outcome of the suit under the governing law.” Id. at 248.

A material factual dispute is genuine “if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Id. In determining whether a genuine issue of material fact

exists, the Court “is to resolve all ambiguities and draw all permissible factual inferences in favor

of the party against whom summary judgment is sought.” Patterson v. County of Oneida, 375 F.3d

206, 219 (2d Cir. 2004) (citing Anderson, 477 U.S. at 255; and Stern v. Trs. of Columbia Univ.,

131 F.3d 305, 312 (2d Cir. 1997)).

The moving party bears the initial burden of demonstrating that there is no genuine issue

of material fact and that it is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986). Where the non-moving party would bear the ultimate burden of proof on

an issue at trial, the moving party may satisfy his burden either: (1) by submitting evidence that

negates an essential element of the non-moving party’s claim, or (2) by demonstrating that the non-

moving party’s evidence is insufficient to establish an essential element of the non-moving party’s

claim.” Nick’s Garage, Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107, 114 (2d Cir. 2017) (quoting

Farid v. Smith, 850 F.2d 917, 924 (2d Cir. 1988)).

If the moving party satisfies its burden, “the opposing party must come forward with

specific evidence demonstrating the existence of a genuine dispute of material fact.” Brown v. Eli

Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (citing Anderson, 477 U.S. at 249). The opposing

party “‘must do more than simply show that there is some metaphysical doubt as to the material

facts’ and ‘may not rely on conclusory allegations or unsubstantiated speculation.’” Id. (first

quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); then quoting

FDIC v. Great American Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010)); see also D’Amico v. City of

New York, 132 F.3d 145, 149 (2d Cir. 1998) (noting that the opposing party “must offer some hard

evidence showing that its version of the events is not wholly fanciful”).

B. Spoliation Sanctions

“Spoliation is the destruction or significant alteration of evidence, or failure to preserve

property for another’s use as evidence in pending or reasonably foreseeable litigation.” In re

Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d 93, 148 (2d Cir. 2008) (internal quotation

marks omitted) (quoting Allstate Ins. Co. v. Hamilton Beach/Proctor Silex, Inc., 473 F.3d 450, 457

(2d Cir. 2007)). Federal Rule of Civil Procedure 37(e)(1) provides that a court “may order

measures no greater than necessary to cure the prejudice” from spoliation if electronically stored

information (“ESI”) “that should have been preserved in the anticipation or conduct of litigation

is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or

replaced through additional discovery.” Fed. R. Civ. P. 37(e)(1).

Sanctions available under Rule 37(e)(1) include “monetary sanctions, forbidding the party

that failed to preserve information from putting on certain evidence, permitting the parties to

present evidence and argument to the jury regarding the loss of information, or giving the jury

instructions to assist in its evaluation of such evidence or argument.” Mule v. 3-D Bldg. & Constr.

Mgmt. Corp., No. CV 18-1997 (JS) (AKT), 2021 WL 2788432, at *6 (E.D.N.Y. July 2, 2021)

(citing Lokai Holdings, LLC v. Twin Tiger USA LLC, No. 15-CV-9363, 2018 WL 1512055, at *8

(S.D.N.Y. Mar. 12, 2018)). “The decision of what type of sanction is appropriate in a given case

is left to the sound discretion of the district court.” Tchatat v. O’Hara, 249 F. Supp. 3d 701, 706–

07 (S.D.N.Y. 2017) (collecting cases).

DISCUSSION

I. Summary Judgment

1. Defendants Had Probable Cause To Arrest Plaintiff And Therefore Are Entitled To

Summary Judgment On The Section 1983 Claim For False Arrest

In analyzing a claim for false arrest under Section 1983, courts look to the law of the state

in which the arrest occurred. Jaegly v. Couch, 439 F.3d 149, 151–52 (2d Cir. 2006) (quoting Davis

v. Rodriguez, 364 F.3d 424, 433 (2d Cir. 2004)). To prevail on a claim for false arrest under New

York law, the plaintiff must show that “(1) the defendant intended to confine him, (2) the plaintiff

was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the

confinement was not otherwise privileged.” Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d

Cir. 2012) (quoting Broughton v. State of New York, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 335

N.E.2d 310 (1975)).

Probable cause “is an absolute defense to a false arrest claim.” Stansbury v. Wertman, 721

F.3d 84, 89 (2d Cir. 2013) (quoting Torraco v. Port Auth. of N.Y. and N.J., 615 F.3d 129, 139 (2d

Cir. 2010)). “Probable cause to arrest exists when the officers have reasonably trustworthy

information as to facts and circumstances that are sufficient to warrant a person of reasonable

caution in the belief that an offense has been committed by the person to be arrested.” Ackerson

v. City of White Plains, 702 F.3d 15, 19 (2d Cir. 2012) (ellipses and alteration omitted) (quoting

Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir. 2007)). In determining whether an officer had

probable cause, courts may consider only “those facts available to the officer at the time of the

arrest and immediately before it.” Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (emphasis

omitted) (quoting Caldarola v. Calabrese, 298 F.3d 156, 162 (2d Cir. 2002)). A false arrest claim

“turns on whether probable cause existed to arrest for any crime, not whether probable cause

existed with respect to each individual charge.” Marcavage v. City of New York, 689 F.3d 98, 109

(2d Cir. 2012) (emphasis added) (citing Devenpeck v. Alford, 543 U.S. 146, 153–56 (2004)).

“It is well-established that a law enforcement official has probable cause to arrest if he

received his information from some person, normally the putative victim or eyewitness, unless the

circumstances raise doubt as to the person’s veracity.” Panetta, 460 F.3d at 395 (first quoting

Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000); then citing Singer v. Fulton Cnty. Sheriff,

63 F.3d 110, 119 (2d Cir. 1995)). In assessing a putative victim’s veracity, courts consider, inter

alia, “the officer’s observation of the putative victim’s physical injuries,” “the level of detail and

consistency in the putative victim’s description of events,” and “incriminating statements by the

plaintiff.” Williams v. Schultz, No. 06-CV-1104, 2008 WL 4635383, at *9 & n.59 (N.D.N.Y. Oct.

16, 2008) (collecting cases). In determining whether probable cause exists, “an officer may not

disregard plainly exculpatory evidence.” Panetta, 460 F.3d at 395 (citing Kerman v. City of New

York, 261 F.3d 229, 241 (2d Cir. 2001)).

Plaintiff was arrested for third-degree assault, among other charges. A person commits

third degree assault when, “[w]ith intent to cause physical injury to another person, he causes such

injury to such person or to a third person; or [h]e recklessly causes physical injury to another

person.” N.Y. Penal Law § 120.00(1)–(2). Physical injury is defined to include “impairment of

physical condition or substantial pain.” Id. § 10.00(9).

The record clearly establishes that Defendants had probable cause to arrest Plaintiff for

third-degree assault. Officer Malvagna received a call about a physical fight between a group of

males. (Pl.’s 56.1 Response ¶¶ 86–89.) When he arrived at the scene, Officer Malvagna was

informed by Arroyo that Plaintiff had attacked him. (Defs.’ 56.1 Statement ¶¶ 103–04; Pl.’s 56.1

Response ¶¶ 103–04.) One of Arroyo’s friends corroborated Arroyo’s account. (Pl.’s 56.1

Response ¶ 108.) Plaintiff also claims that Officer Malvagna would have seen that Plaintiff had

visible scratched and marks on his face, arms, and legs, (Pl.’s 56.1 Response ¶ 108,) which would

only support the inference that Plaintiff was involved in a fight. Finally, Plaintiff admitted to

Officer Malvagna that he was involved in the fight. (See Pl.’s 56.1 Response ¶ 79.) These facts

establish probable cause to arrest Plaintiff for assault.

The fact that Plaintiff and Larnell offered a conflicting account does not vitiate the probable

cause to arrest Plaintiff. See, e.g., Crews v. County of Nassau, 996 F. Supp. 2d 186, 205 (E.D.N.Y.

2014) (“The Second Circuit has held consistently that conflicting accounts of a crime do not vitiate

the probable cause established by an eyewitness identification or alleged victim of a crime.”

(collecting cases)); see also Panetta, 460 F.3d at 395–96 (noting that “an officer’s failure to

investigate an arrestee’s protestations of innocence generally does not vitiate probable cause”);

Curley v. Village of Suffern, 268 F.3d 65, 70 (2d Cir. 2001) (finding that conflicting accounts of

arrestee and eyewitnesses did not undermine probable cause established by eyewitness’s

statements inculpating arrestee). Plaintiff’s claims that he acted in self-defense (Pl.’s Opp. Br. 9,

14) do not undermine the officers’ probable cause determination. See Ricciuti v. N.Y.C. Transit

Auth., 124 F.3d 123, 128 (2d Cir. 1997) (finding probable cause supported by statement of victim

identifying plaintiff as his assailant and victim’s visible injuries, despite plaintiff’s claims that he

was innocent and acted in self-defense).

In claiming that Arroyo “provided a fantastical tale” that should not have been credited by

the officers, Plaintiff focuses on the visible injuries Plaintiff, Larnell, and Arroyo each had and the

size of each person. (Pl.’s Opp. Br. 5, 10–11.) But the fact “one participant in a fight is injured

less than the other does not approach” the “‘plainly exculpatory evidence’ exception to the

establishment of probable cause by a complainant’s statement.” Sforza v. City of New York, No.

07 Civ. 6122(DLC), 2009 WL 857496, at *14 (S.D.N.Y. Mar. 31, 2009) (noting that “[t]he

possibility that both parties were injured may indicate the existence of probable cause to arrest the

[victim] as well, but the [victim’s] lack of severe injury does not indicate that no fight occurred or

that the [victim] was not punched or kicked”). While Plaintiff disputes whether Arroyo had any

visible injuries, evidence in the record “show[s] that the officers had the impression that he did.”

Id. (See Defs.’ 56.1 Statement ¶ 105; Marquez Supp. Decl. Ex. A 29:16–29:18, 31:3–31:5 (Arroyo

testifying that officers “seemed to be concerned about” his head injuries and “wanted the

ambulance to check on me”); Marquez Supp. Decl. Ex. I [ECF No. 87-9] (criminal complaint

signed by Officer Malvagna describing Arroyo’s injuries); Marquez Supp. Decl. Ex. L [ECF No.

87-12] (aided card documenting Arroyo’s injuries).) The fact that Arroyo did not suffer more

severe injuries despite Plaintiff and Larnell being larger than he did not make it unreasonable for

the officers to have credited Arroyo’s account.

Plaintiff argues that a jury could find that it was objectively unreasonable for the officers

not to have asked Arroyo and the eyewitnesses certain follow-up questions. (Defs.’ Opp. Br. 5–6,

17–18, 24; see Pl.’s 56.1 Response ¶¶ 171–75.) But “once a police officer has a reasonable basis

for believing there is probable cause, he is not required to explore and eliminate every theoretically

plausible claim of innocence before making an arrest.” Curley, 268 F.3d at 70 (alteration omitted)

(quoting Ricciuti, 124 F.3d at 128); see also Panetta, 460 F.3d at 396 (alteration omitted) (noting

that “once officers possess facts sufficient to establish probable cause, they are neither required

nor allowed to sit as prosecutor, judge or jury” (quoting Krause v. Bennett, 887 F.2d 362, 372 (2d

Cir. 1989))).

Accordingly, the Court grants summary judgment for Defendants on the false arrest claim.

2. The Record Objectively Established That There Was Probable Cause To Prosecute

Plaintiff And Therefore, Defendants Are Entitled To Summary Judgment On The

Claims For Malicious Prosecution Under Both Section 1983 And New York State Law

To prevail on a claim for malicious prosecution under Section 1983 and under New York

law, a plaintiff must establish the same four elements: “(1) the initiation or continuation of a

criminal proceeding against plaintiff; (2) termination of the proceeding in plaintiff’s favor; (3) lack

of probable cause for commencing the proceeding; and (4) actual malice as a motivation for the

defendant’s actions.” Dettelis v. Sharbaugh, 919 F.3d 161, 163–64 (2d Cir. 2019) (quoting Murphy

v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997)). “Because lack of probable cause is an element of a

malicious prosecution claim, ‘the existence of probable cause is a complete defense to a claim of

malicious prosecution.’” Stansbury, 721 F.3d at 94–95 (quoting Manganiello v. City of New York,

612 F.3d 149, 161–62 (2d Cir. 2010)).

The probable cause determination relevant to a malicious prosecution claim differs slightly

from that relevant to a false arrest claim. Mejia v. City of New York, 119 F. Supp. 2d 232, 254

(E.D.N.Y. 2000); see Posr v. Court Officer Shield # 207, 180 F.3d 409, 417 (2d Cir. 1999). “In the

malicious prosecution context, probable cause is defined as ‘the knowledge of facts, actual or

apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for

prosecuting the defendant in the manner complained of.’” Diop v. City of New York, 50 F. Supp.

3d 411, 421 (S.D.N.Y. 2014) (quoting Rounseville v. Zahl, 13 F.3d 625, 629 (2d Cir. 1994)). Unlike

an arrest, prosecution requires probable cause for each of the crimes charged. See Posr v. Doherty,

944 F.2d 91, 100 (2d Cir. 1991). Moreover, probable cause to prosecute “is assessed in light of

the facts known or reasonably believed at the time the prosecution was initiated, as opposed to at

the time of the arrest.” Sankar v. City of New York, 867 F. Supp. 2d 297, 311 (E.D.N.Y. 2012)

(quoting Carson v. Lewis, 35 F. Supp. 2d 250, 263 (E.D.N.Y. 1999)). Therefore, “information

discovered by a malicious prosecution defendant after the arrest, but before the commencement of

proceedings, is relevant to the determination of probable cause in cases where the prosecution

follows a warrantless arrest.” Jackson v. City of New York, 939 F. Supp. 2d 235, 251 (E.D.N.Y.

2013) (quoting Mejia, 119 F. Supp. 2d at 254).

The Court’s finding of probable cause to arrest Plaintiff for third-degree assault precludes

Plaintiff’s malicious prosecution claims with respect to the third-degree assault and attempted

third-degree assault charges because there was no new information learned by the officers between

the arrest and swearing of the criminal complaint that undermines the probable cause determination

made at the time of arrest. See Castro v. County of Nassau, 739 F. Supp. 2d 153, 169 (E.D.N.Y.

Sept. 13, 2010) (granting summary judgment on malicious prosecution claim based on underlying

probable cause to arrest because there was “no evidence” that defendants became aware of any

information for probable cause to dissipate); Carthew v. County of Suffolk, 709 F. Supp. 2d 188,

202 (E.D.N.Y. 2010) (granting summary judgment on malicious prosecution claim where “plaintiff

[did] not ma[k]e the Court aware of any post-arrest facts that would alter the initial finding of

probable cause”); Merritt v. Dunlap, No. 1:01-CV-1487HGMRFT, 2005 WL 3601645, at *9

(N.D.N.Y. Dec. 30, 2005) (granting summary judgment where the court “already found that

defendants had probable cause to arrest plaintiff, and the record reveals that no intervening fact

emerged to dissipate the probable cause that existed at the arrest stage prior to the commencement

of the prosecution”).

Plaintiff’s malicious prosecution claim relating to his second-degree harassment charge

fails because the only reasonable conclusion from the record is that there was probable cause to

believe Plaintiff could be prosecuted for this offense. “A person is guilty of harassment in the

second degree when, with intent to harass, annoy or alarm another person: He or she strikes,

shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens

to do the same . . . .” N.Y. Penal Law § 240.26(1). “The crux of section 240.26(1) is the element

of physical contact: actual, attempted or threatened.” People v. Bartkow, 96 N.Y.2d 770, 772, 749

N.E.2d 158, 725 N.Y.S.2d 589 (2001). The statute covers “petty forms of offensive touching” that

do not rise to the level of assault. Id.

The same facts that establish probable cause for the assault charges—reliance on

statements of Arroyo and eyewitnesses and Plaintiff’s admission that he was involved in the

fight—establish probable cause for the second-degree harassment charge. See Nix v. City of

Rochester, No. 6:14-cv-06395(MAT), 2017 WL 3387103, at *6–7 (W.D.N.Y. Aug. 5, 2017)

(granting summary judgment on malicious prosecution claim where officers had probable cause

to charge second-degree harassment based on 911 dispatch call and accurate description of

plaintiff); Hotaling v. LaPlante, 167 F. Supp. 2d 517, 523 (N.D.N.Y. 2001) (granting summary

judgment on malicious prosecution claim relating to second-degree harassment charge where

officer relied on corrections officer’s account and statements of corroborating witnesses); Mars v.

City of New York, Nos. 01–278, 01–279, 2002 WL 83697, at *1 (N.Y. 1st Dep’t Jan. 8, 2002) (per

curiam) (granting summary judgment on malicious prosecution claim where complainant’s

statements and plaintiff’s admissions of involvement in dispute established probable cause).

Accordingly, the Court grants summary judgment for Defendants on the malicious

prosecution claims.

3. Defendants Are Entitled To Summary Judgment On The Section 1983

Failure To Intervene Claim Since There Were No Primary Constitutional Violations

“It is widely recognized that all law enforcement officials have an affirmative duty to

intervene to protect the constitutional rights of citizens from infringement by other law

enforcement officers in their presence.” Terebesi v. Torreso, 764 F.3d 217, 243 (2d Cir. 2014)

(quoting Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994)). “[A] failure to intervene claim is

contingent only on the underlying claim.” Arbuckle v. City of New York, 14-CV-10248 (ER), 2016

WL 5793741, at *14 (S.D.N.Y. Sept 30, 2016) (citing Matthews v. City of New York, 889 F. Supp.

2d 418, 443–44 (E.D.N.Y. 2012)). Accordingly, “there can be no failure to intervene claim without

a primary constitutional violation.” Sanabria v. Tezlof, No. 11 Civ. 6578 (NSR), 2016 WL

4371750, at *5 (S.D.N.Y. Aug. 12, 2016) (quoting Forney v. Forney, 96 F. Supp. 3d 7, 13 (E.D.N.Y.

2015)); see Bancroft v. City of Mount Vernon, 672 F. Supp. 2d 391, 406 (S.D.N.Y. 2009).

Plaintiff’s failure to intervene claim fails as a matter of law because there was probable

cause to arrest and to charge Plaintiff. See Wieder v. City of New York, 569 F. App’x 28, 30 (2d

Cir. 2014) (summary judgment) (“Because the underlying constitutional claims were properly

dismissed, we also affirm the district court’s dismissal of plaintiff’s failure to intervene claim.

(citing O’Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988))); Soto v. City of New York, 132 F.

Supp. 3d 424, 459 (E.D.N.Y. 2015) (granting summary judgment for defendants on failure to

intervene claim where underlying claims for false arrest and malicious prosecution failed);

Feinberg v. City of New York, No. 99CV12127(RC), 2004 WL 1824373, at *4 (S.D.N.Y. Aug. 13,

2004) (granting summary judgment on failure to intervene claim where officers had probable cause

to arrest and charge plaintiff). Accordingly, the Court grants Defendants’ motion on the failure to

intervene claim.

4. Defendants Are Entitled To Summary Judgment On The Respondeat Superior

Claim Since There Is Not Actionable Underlying Claim

Plaintiff asserts a respondeat superior claim against the City. (Compl. ¶¶ 97–100.) Having

granted summary judgment for the individual Defendants on Plaintiff’s state-law malicious

prosecution claim and there being no surviving underlying theory of liability, Plaintiff’s respondeat

superior cause of action fails. Harsco Corp. v. Segui, 91 F.3d 337, 349 (2d Cir. 1996); see also

Ikezi v. City of New York, No. 14-CV-5905 (MKB), 2017 WL 1233841, at *16 (E.D.N.Y. Mar. 31,

2017) (“Because the Court grants Defendants’ motion for summary judgment and dismisses

Plaintiffs’ state-law false arrest claims, the Court also dismisses the respondeat superior claims.”

(citing Conte v. County of Nassau, 596 F. App’x 1, 3 (2d Cir. 2014) (summary order))); Stevens v.

City of New York, No. 10 Civ. 2172(KBF)(JLC), 2012 WL 5862659, at *4, n.6 (S.D.N.Y. Nov. 14,

2012) (finding “no substantive offense for which the City of New York can be held vicariously

liable” upon dismissing state-law claims against individual police officers). Accordingly, the

Court grants summary judgment in Defendants’ favor and dismisses the respondeat superior claim.

II. Spoliation Sanctions

Plaintiff moves for sanctions under Rule 37(e)(1) based on Defendants’ spoliation of the

photographs of Plaintiff, Larnell, Gibson, and Arroyo taken by Officer Malvagna on his cell phone

and the 911 calls and radio transmissions that alerted police to the scene. (Pl.’s Supp. Br. 1–5.)

For Plaintiff to prevail on his motion, the Court must determine whether (1) the ESI should have

been preserved in the anticipation of litigation, (2) it was lost because Defendants failed to take

reasonable steps to preserve it, (3) it cannot be entirely restored or replaced, and (4) Plaintiff was

prejudiced as a result.

1. The ESI Should Have Been Preserved

The obligation to preserve evidence is based on a two-part inquiry: (1) when did the

obligation arise and (2) to what evidence did the duty attach. Jacquety v. Baptista, No. 19-CV-

9642 (RWL), 2021 WL 1885263, at *10 (S.D.N.Y. May 11, 2021). The obligation “arises when

the party has notice that the evidence is relevant to litigation or when a party should have known

that the evidence may be relevant to future litigation.” Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d

423, 436 (2d Cir. 2001) (emphasis added) (citing Kronisch v. United States, 150 F.3d 112, 126 (2d

Cir. 1998)). “Pursuant to this obligation, ‘anyone who anticipates being a party or is a party to a

lawsuit must not destroy unique, relevant evidence that might be useful to an adversary.’” Estate

of Jackson v. County of Suffolk, No. 12–1455 (JFB)(AKT), 2014 WL 1342957, at *9 (E.D.N.Y.

Mar. 31, 2014) (quoting Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003)).

In this context, “‘relevance’ means relevance for purposes of discovery, which is ‘an extremely

broad concept.’” Orbit One Commc’ns v. Numerex Corp., 271 F.R.D. 429, 436–37 (S.D.N.Y.

2010) (collecting cases). A litigant thus “is under a duty to preserve what it knows, or reasonably

should know, is relevant in the action, is reasonably calculated to lead to the discovery of

admissible evidence, [or] is reasonably likely to be requested during discovery.” Zubulake, 220

F.R.D. at 217 (quoting Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 72 (S.D.N.Y. 1991)).

Defendants’ duty to preserve the photographs and radio transmissions arose on January 8,

2018, when Plaintiff served his Notice of Claim on the New York City Law Department. (Joubin

Supp. Decl. Ex. A.) And yet, ten days later, Officer Malvagna exchanged his official phone and

all of the information on the original phone was erased, including photos of the day of the incident.

A little under six months after the Notice of Claim was served on Counsel to Defendants, the 911

calls and the radio transmissions were deleted consistent with the NYPD retention policy.

Upon receipt of the Notice of Claim, Defendants should have known that photographs of

individuals involved in the altercation and the 911 and dispatch transmissions may be relevant to

anticipated litigation. See Man Zhang v. City of New York, No. 17-CV-5415 (JFK) (OTW), 2019

WL 3936767, at *6 (S.D.N.Y. Aug. 20, 2019) (finding duty to preserve arose “when Plaintiffs filed

their Personal Injury Claim Form, providing explicit notice of a forthcoming wrongful death and

medical malpractice lawsuit”); Field Day, LLC v. County of Suffolk, No. 04–2202, 2010 WL

1286622, at *4 (Mar. 25, 2010) (holding that “the County was put on notice of the potential for

future litigation when it received [plaintiff’s] notice of claim and its duty to preserve arose on that

date”). Immediately upon receipt of the Notice of Claim, it was incumbent on the New York City

Law Department to put a “litigation hold” on any potential relevant evidence and to advise any

custodian that such evidence must be preserved. See Man Zhang, 2019 WL 3936767, at *6.

Defendants’ arguments to the contrary are baseless. (Defs.’ Opp. Br. 5–16.) Defendants

assert that Plaintiff failed to take affirmative steps to prevent the destruction of evidence. (Pl.’s

Opp. Br. 14–16, 22.) For Defendants to concede that evidence was destroyed yet attempt to shift

the blame to Plaintiff “flies in the face of well-established civil litigation practice that a defendant,

upon notice of a lawsuit, instructs its officials to preserve pertinent documents.” Herman v. City

of New York, 334 F.R.D. 377, 382 (E.D.N.Y. 2020). While it may have been prudent of Plaintiff

to include in his Notice of Claim language requesting preservation of evidence, he was not

obligated to do so; the Notice of Claim alone triggered Defendants’ duty to preserve. See Alter v.

Rocky Point Sch. Dist., No. 13–1100 (JS)(AKT), 2014 WL 4966119, at *9 (E.D.N.Y. Sept. 30,

2014) (finding duty to preserve triggered “as soon as the Notice of Claim was filed in November

2010—at which point litigation was or should have been reasonably anticipated by the

Defendants” (citing Sekisui American Corp. v. Hart, 945 F. Supp. 2d 494, 494 (S.D.N.Y. 2003))).

The fact that six months passed from Plaintiff’s arrest to his filing of the Notice of Claim is

immaterial. See Steinsnyder v. United States, No. 09–CV–5407 (KAM), 2013 WL 1206451, at

*14 (E.D.N.Y. Feb. 8, 2013) (finding that filing of claim with agency six months after accident

triggered duty to preserve).

Moreover, Plaintiff was not obligated to serve the Notice of Claim on Officer Malvagna

personally. See N.Y. Gen. Mun. Law § 50–e(1)(b); Ruiz v. Herrera, 745 F. Supp. 940, 945

(S.D.N.Y. 1990) (holding that plaintiff “was required to serve a notice of claim on the village of

Port Chester as a condition precedent to filing this civil action against the police officers”).

Plaintiff served the Notice of Claim on the Law Department, the attorney for and agent of the City

and the NYPD. (Joubin Supp. Decl. Ex. A.) Once the Notice of Claim was served, the City, and

specifically its counsel, were obligated to notify individuals who might be in possession of

potentially relevant evidence to ensure that such evidence be preserved. See Herman, 334 F.R.D.

at 385. It is well established that “[t]he preservation obligation runs first to counsel, who has a

duty to advise his client of the type of information potentially relevant to the lawsuit and of the

necessity of preventing its destruction.” Id. (quoting Chan v. Triple 8 Palace, Inc., No. 03-CV-

6048, 2005 WL 1925579, at *6 (S.D.N.Y. Aug. 11, 2005)). Once the Law Department received

the Notice of Claim—which specifically named Officer Malvagna—the obligation to preserve

evidence ran not only to the City but also to its employees, including Officer Malvagna. Cf.

Official Comm. of Unsecured Creditors of Exeter Holdings, Ltd. v. Haltman, No. 13-CV-5475,

2015 WL 5027899, at *18 (E.D.N.Y. Aug. 25, 2015) (noting that “where a business . . . is under a

duty to preserve, its corporate officers and managers have an affirmative responsibility to

communicate the preservation obligation to its employees” (citing Orbit One Commc’ns, Inc., 271

F.R.D. at 437; and Turner, 142 F.R.D. at 73)), report & recommendation adopted, 2016 WL 128154

(E.D.N.Y. Jan. 12, 2016).

Defendants’ qualified immunity argument is misplaced. Qualified immunity “protects

government officials from suits seeking to impose personal liability for money damages based on

unsettled rights or on conduct that was not objectively unreasonable.” Tenenbaum v. Williams, 193

F.3d 581, 595–96 (2d Cir. 1999) (emphasis added) (quoting Connell v. Signoracci, 153 F.3d 74, 79

(2d Cir. 1998)). Plaintiff’s motion for spoliation sanctions falls in a completely different category.

Tellingly, Defendants do not cite one case where qualified immunity has shielded government

officials from their duty to preserve potentially relevant evidence once litigation is or reasonably

should have been anticipated or from spoliation sanctions for failure to ensure said evidence is

preserved.

Finally, the size of the City and the “inherent inefficiencies related to such bureaucracies”

(Defs.’ Opp. Br. 16) does not excuse Defendants of their duty to preserve evidence. See Jacob v.

City of New York, No. 07cv04141 (KAM)(MDG), 2009 WL 383752, at *1 (E.D.N.Y. Feb. 6, 2009)

(noting that the “difficulties that counsel may face in representing a large municipality with many

independent agencies such as the Police Department . . . does not obviate discovery obligations”).

Indeed, several courts have directed the City and Law Department to address issues relating to

evidence preservation. See Martinez v. City of New York, No. 16 CV 79 (AMD) (CLP), 2018 WL

604019, at *34 (E.D.N.Y. Jan. 24, 2018) (encouraging the City and its counsel “to evaluate the

systems currently in place for storing, maintaining, indexing, and accessing records of the NYPD,

and to review with all involved the preservation and production obligations attendant to

litigation”); Jacob, 2009 WL 383752, at *1 (urging “the Corporation Counsel’s office and legal

department of the Police Department to consider measures to insure that prompt efforts are

undertaken to preserve [911] tapes once litigation is anticipated”).

Accordingly, the Court finds that the ESI should have been preserved.

2. The ESI Was Lost Because Defendants Failed

To Take Reasonable Steps To Preserve It

“Once a party reasonably anticipates litigation, it must suspend its routine document

retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of

relevant documents.” Lokai Holdings, 2018 WL 1512055, at *11 (quoting Treppel v. Biovail Corp.,

249 F.R.D. 111, 118 (S.D.N.Y. 2008)). Counsel is “obligated to ‘oversee compliance with [a]

litigation hold, monitoring the party’s efforts to retain and produce the relevant documents,’ and to

‘become fully familiar with [their] client’s document retention policies, as well as the client’s data

retention architecture.’” Id. (alterations in original) (quoting Zubulake v. UBS Warburg LLC, 229

F.R.D. 422, 431–32 (S.D.N.Y. 2004)). “Where a party fails to timely institute ‘a formal litigation

hold and otherwise informally preserve ESI,’ the Court can conclude that it did not undertake

reasonable steps to preserve ESI.” Charlestown Capital Advisors, LLC v. Acero Junction, Inc.,

337 F.R.D. 47, 61 (S.D.N.Y. 2020) (quoting Capricorn Mgmt. Sys., Inc. v. Gov’t Emps. Ins. Co.,

No. 15-cv-2926 (DRH)(SIL), 2019 WL 5694256, at *10 (E.D.N.Y. July 22, 2019), report &

recommendation adopted, 2020 WL 1242616 (E.D.N.Y. Mar. 16, 2020)).

The “reasonable step” prong is “equate[d] to roughly a negligence standard.” Leidig v.

Buzzfeed, Inc., No. 16 Civ. 542 (VM) (GWG), 2017 WL 6512353, at *10 (S.D.N.Y. Dec. 19, 2017)

(citing Fed. Hous. Fin. Agency for Fed. Nat’l Mortg. Ass’n v. Nomura Holding America, Inc., 873

F.3d 85, 129 (2d Cir. 2017)). “Once the duty to preserve attaches, any destruction of documents

is, at a minimum, negligent.” Charlestown Capital, 337 F.R.D. at 61 (quoting Zubulake, 220

F.R.D. at 220).

Defendants irrefutably failed to take reasonable steps to preserve the photographs, 911

calls, and radio transmissions since they did not suspend routine evidence retention and destruction

policies or implement a litigation hold when they received Plaintiff’s Notice of Claim.

Charlestown Capital, 337 F.R.D. at 61 (quoting Capricorn Mgmt., 2019 WL 5694256, at *10).

Consequently, the photographs on Officer Malvagna’s cell phone were not preserved when Officer

Malvagna exchanged his NYPD-issued phone for a new one (see Joubin Supp. Decl. Ex. B at

34:7–35:9), and the 911 calls and radio transmissions were automatically deleted pursuant to the

audio retention policy of the NYPD (see Joubin Supp. Decl. Ex. E ¶¶ 3–5).

The parties’ dispute over whether Officer Malvagna complied with NYPD Operations

Order No. 20, which concerns data retention on NYPD-issued smartphones (see Pl.’s Supp. Br. 3,

8; Defs.’ Opp. Br. 9–11), is irrelevant because standard evidence retention policies of this sort

should be suspended and a litigation hold must be implemented when litigation is anticipated.

Lokai Holdings, 2018 WL 1512055, at *11; see Stinson v. City of New York, No. 10 Civ. 4228,

2016 WL 54684, at *4–5 (S.D.N.Y. Jan. 5, 2016) (“The failure to circulate a litigation hold, and to

ensure that it was properly implemented, was particularly damaging in the context of the NYPD’s

standing document retention policies, which ensured that inaction on the part of the City would

result in the destruction of evidence.”).

Defendants argue that they acted reasonably by generating a SPRINT report, which

“reflects information inputted by the 9-1-1 operator as it is being provided over the telephone

and/or radio communication.” (Defs.’ Opp. Br. 7–8, 16–17.) The advisory committee notes to

Rule 37(e) provides that “[a] party may act reasonably by choosing a less costly form of

information preservation, if it is substantially as effective as more costly forms.” Fed. R. Civ. P.

37(e), advisory comm. n., 2015 amend. But courts have recognized that “[i]n most instances,

Sprint reports are not a satisfactory substitute.” Jacob, 2009 WL 383752, at *1; see also People v.

Hagen, 247 A.D.2d 405, 406, 669 N.Y.S.2d 49, 50 (N.Y. App. Div. 1998) (“The defendant correctly

contends that the ‘Sprint reports’ are not the ‘duplicative equivalents’ of 911 tapes.”); DeJesus v.

Superintendent of Attica Corr. Facility, No. 17 Civ. 3932 (GBD) (AJP), 2017 WL 6398338, at *32

(S.D.N.Y. Dec. 13, 2017) (noting state judge’s observation that “‘the Sprint report is not the

duplicative equivalent’ of the 911 tape”).2

2 In Jacob, the Eastern District specifically considered the issue of the Police Department

destroying tapes once the obligation to preserve evidence arises and concluded that the Law

Department must put in place litigation holds to ensure the preservation of documents. See 2009

WL 383752, at *1. However, outside of this case, there is not much federal caselaw addressing

this issue in the context of spoilation. New York State courts have considered this issue as well

and have concluded that “‘Sprint reports’ are not the ‘duplicative equivalents’ of 911 tapes.”

Hagen, 247 A.D.2d at 406. The ruling in Hagen relied on a Court of Appeals of New York

decision, in which the Court of Appeals concluded that testimony or even a transcript of a lost or

destroyed police document is not a substitute for the original document because “inadvertent

errors, omissions and deletions can occur, giving rise to precisely the kind of discrepancies that

On the undisputed factual record before it, the Court finds that the ESI was lost because

Defendants failed to take reasonable steps to preserve it. See Moody v. CSX Transp., Inc., 271 F.

Supp. 3d 410, 429 (W.D.N.Y. 2017) (finding failure to take reasonable steps where “defendants

destroyed or recycled [a] laptop despite knowing that it likely contained relevant evidence that

they never confirmed had been properly uploaded to another repository”); In re Pfizer Inc. Sec.

Litig., 288 F.R.D. 297, 326 (S.D.N.Y. 2013) (finding breach of duty to preserve where party “did

not institute a litigation hold and did not suspend its routine document destruction policies,

including its one-year retention policy for emails”).

3. The ESI lost Cannot Be Entirely Restored or Replaced

It is undisputed that the ESI cannot be entirely restored or replaced. The photographs

cannot be recovered since Officer Malvagna’s cell phone “was wiped/erased of all data” (Joubin

Supp. Decl. Ex. J [ECF No. 92-10]), and the 911 calls and radio transmissions have been

permanently deleted (Joubin Supp. Decl. Ex. E ¶¶ 4–5; see also Joubin Supp. Decl. Ex. D [ECF

No. 92-4]). As noted, courts previously have ruled that the Sprint report is not a satisfactory

substitute, Jacob, 2009 WL 383752, at *1, and as such, the City and NYPD cannot be heard to

argue that it was appropriate to continue unabated the implementation of its routine audio retention

policy once a Notice of Claim was served.

4. Whether Plaintiff Was Prejudiced As a Result

Rule 37(e) does not clearly define prejudice. Ungar v. City of New York, 329 F.R.D. 8, 15

(E.D.N.Y. 2018). The advisory committee notes explain that “[a]n evaluation of prejudice from

the loss of information necessarily includes an evaluation of the information’s importance in the

are most useful in cross-examination.” People v. Joseph, 86 N.Y.2d 565, 658 N.E.2d 996 (N.Y.

1995).

litigation.” Fed. R. Civ. P. 37(e), advisory comm. n., 2015 amend. Rule 37(e) “does not place a

burden of proving or disproving prejudice on one party or the other” and “leaves judges with

discretion to determine how best to assess prejudice in particular cases.” Id.

The Second Circuit has cautioned district courts against “holding the prejudiced party to

too strict a standard of proof regarding the likely contents of the destroyed evidence.” Kronisch,

150 F.3d at 128. Yet, a court “must have some evidence regarding the particular nature of the

missing ESI in order to evaluate the prejudice it is being requested to mitigate.” Moody, 271 F.

Supp. 3d at 430 (quoting Eshelman v. Puma Biotechnology, Inc., No. 7:16-CV-18-D, 2017 WL

2483800, *5 (E.D.N.C. 2017)).

Plaintiff claims the destruction of the photographs “deprived him of the opportunity to

decisively demonstrate Arroyo’s lack of injuries, and to therefore debunk any argument that the

defendant officers were reasonable to believe Arroyo’s story.” (Pl.’s Supp. Br. 10.) Plaintiff also

claims that the Sprint Report does not reflect precisely what the officers heard as they approached

the scene. (Id.) In addition, Plaintiff claims “economic prejudice” through attorneys’ fees and

costs incurred in addressing the spoliation issues. (Id. at 12.) Plaintiff asks the Court to (i) preclude

Officer Malvagna’s testimony that Arroyo appeared injured; (ii) preclude any testimony of

Defendants that conflicts with the Sprint Report, (iii) infer that the substance of all entries on the

Sprint Report were conveyed over the radio to Officers Malvagna and Campanella, and (iv) award

attorneys’ fees for counsel’s work in seeking the ESI and bringing this motion. (Id. at 11–12.)

Even if the Court were to grant the first three forms of relief, the Court’s ruling on

Defendants’ summary judgment motion would not change. Even without Officer Malvagna’s

testimony, there is sufficient evidence indicating that Arroyo was beaten by Plaintiff and had

sustained visible injuries, including, Arroyo’s testimony, the criminal complaint, and the aided

card. (See Marquez Supp. Decl. Ex. A 29:16–29:18, 31:3–31:5; Marquez Supp. Decl. Ex. I;

Marquez Supp. Decl. Ex. L.) This evidence, Arroyo’s account at the scene, and the corroborating

statements of multiple eyewitnesses established probable cause to arrest and charge Plaintiff.

Furthermore, the Sprint Reports did not influence the Court’s conclusions with respect to the lack

of merit of the Plaintiff’s claims.

The Court nevertheless concludes that an award of attorneys’ fees and costs is appropriate

here. It is well-established that “misconduct that causes a party to incur additional expenses is a

form of prejudice that supports an award of sanctions pursuant to Rule 37(e).” Fashion Exch. LLC

v.Hybrid Promotions, LLC, No. 14-CV-1254 (SHS), 2021 WL 1172265, at *5 (S.D.N.Y. Mar. 29,

2021) (citing Karsch v. Blink Health Ltd., No. 17-CV-3880, 2019 WL 2708125, at *25 (S.D.N.Y.

June 20, 2019); see also Karsch, 2019 WL 2708125, at *25 (finding “‘economic prejudice’ in the

form of the attorneys’ fees and other expenses [defendants] have incurred in discovering and

proving the disappearance of the [ESI]”); Moody, 271 F. Supp. 3d at 430–31 (finding prejudice

where “the loss of the data has required [plaintiff] to spend additional resources to attempt to

resolve this critical factual dispute”); CAT3, LLC v. Black Lineage, Inc., 164 F. Supp. 3d 488, 501

(S.D.N.Y. 2016) (finding prejudice in part because “defendants have been put to the burden and

expense of ferreting out the malfeasance and seeking relief from the Court”). Where, as here, “the

only prejudice to the movant ‘lies in the extra time and expense that have been necessary to obtain

relevant discovery from third parties,’ monetary sanctions may be a sufficient cure.” Charlestown

Capital, 337 F.R.D. at 60 (quoting Lokai Holdings, 2018 WL 1512055, at *12).

Plaintiff is entitled to reasonable attorneys’ fees and costs incurred in connection with the

spoliation of evidence in this case, including Plaintiff’s bringing this motion. See, e.g., Mule, 2021

WL 2788432, at *17 (collecting cases); Charlestown Capital, 337 F.R.D. at 67–68; Lokai

Holdings, 2018 WL 1512055, at *17; see also R.F.M.A.S., Inc. v. So, 271 F.R.D. 13, 52–53

(S.D.N.Y. 2010) (“Costs, including attorney’s fees are appropriate when a defendant has

unjustifiably destroyed evidence that it was under a duty to preserve, ‘causing the plaintiff to

expend time and effort in attempting to track down the relevant information.’” (quoting Turner,

142 F.R.D. at 78)). “‘This remedy ameliorates the economic prejudice imposed’ on Plaintiff[] ‘and

also serves as a deterrent to future spoliation.’” Mule, 2021 WL 2788432, at *17 (quoting CAT3,

164 F. Supp. 3d at 502).

The monetary sanctions are imposed against the City and the Law Department, jointly and

severally. “The Court has wide discretion to apportion Rule 37 monetary sanctions between a

party and its counsel.” Charlestown Capital, 337 F.R.D. at 69 n.19 (quoting Joint Stock Co.

Channel One Russ. Worldwide v. Infomir LLC, 16-CV-1318 (GBD) (BCM), 2019 WL 4727537, at

*20 (S.D.N.Y. Sept. 28, 2019)); see Fashion Exch., 2021 WL 1172265, at *5 (noting that courts in

this district have sanctioned attorneys under Rule 37(e)(1) (citing Karsch, 2019 WL 2708125, at

*26–28; and Karsch v. Blink Health Ltd., No. 17-CV-3880 (VM) (BCM), 2019 WL 6998563, at

*1 (S.D.N.Y. Dec. 20, 2019))). Where counsel commits or causes the sanctionable conduct,

“[e]ffective deterrence . . . demands that the monetary sanction also run against counsel.” Joint

Stock Co., 2019 WL 4727537, at *30 (citing Yeboah v. United States, No. 99 Civ. 4923 JFK THK,

2000 WL 1576886, at *4 (S.D.N.Y. Oct. 20, 2020)).

Apportioning sanctions between the City and Law Department is appropriate here because

the destruction of evidence in this case resulted entirely from the Law Department’s failure to take

effective steps to ensure that the ESI would be preserved.3 The Court recognizes that in

3 Some courts have declined to apportion spoliation sanctions between a party and its counsel, even where the

spoliation resulted from the failure of litigation counsel to take effective steps to ensure the preservation of relevant

ESI, given the well-established principle that “a litigant chooses counsel at his peril.” Charlestown Capital, 337 F.R.D.

at 69 n.19 (alteration omitted) (quoting Cine Forty-Second St. Theatre Corp. v. Allied Artists Pictures Corp., 602 F.2d

sanctioning the Law Department in addition to the City, the financial penalties ultimately will be

paid out of the same purse. Nevertheless, sanctioning the Law Department “is necessary both to

deter such conduct in the future as well as to compensate for the expenses [Plaintiff] w[as] forced

to incur by [the Law Department’s] willful disregard in ensuring that [evidence preservation]

obligations were being met.” Fashion Exch. LLC v. Hybrid Promotions, LLC, No. 14-CV-1254

(SHS), 2019 WL 6838672, at *9 (S.D.N.Y. Dec. 16, 2019) (imposing Rule 37(e)(1) monetary

sanctions on counsel because, inter alia, there was “no indication that [he] made any effort to

ensure that documents were preserved or that a litigation hold was imposed at any time”); see also

DR Distribs., LLC v. 21 Century Smoking, Inc., 513 F. Supp. 3d 839, 864, 933–34 (N.D. Ill. Jan.

19, 2021) (including counsel in apportionment of monetary sanctions for, inter alia, not issuing

“litigation hold communication stating to cease all autodelete functions”). And as noted above,

courts have previously raised with the Law Department issues regarding evidence preservation in

connection with civil litigation. See Martinez, 2018 WL 604019, at *34; Jacob, 2009 WL 383752,

at *1. Sanctions here are intended to serve as a warning to the Law Department of the need to be

more diligent in satisfying its obligation to ensure that evidence is preserved

No sanctions are imposed against Officer Malvagna. Although, as explained above, Officer

Malvagna had a legal obligation to preserve evidence once the Law Department was served with

the Notice of Claim, see supra pp. 20–21, he was completely unaware of this obligation by reason

of the Law Department’s failure to advise him of the impending litigation. Imposing monetary

sanctions on Officer Malvagna would be inconsistent with the purposes of Rule 37 sanctions. See

1062, 1068 (2d Cir. 1979)); see N.Y. State Nat. Org. for Women v. Cuomo, No. 93Civ.7146 (RLC) (JCF), 1997 WL

671610, at *5 (S.D.N.Y. Oct. 28, 1997) (“[T]he acts and omissions of counsel are generally attributed to the client.”

(citing Cine Forty-Second, 602 F.2d at 1068 n.10; and Burke v. ITT Auto., Inc., 139 F.R.D. 24, 36 (W.D.N.Y. 1991))).

But that reasoning is not applicable here because, pursuant to the New York City Charter, the Law Department “shall

be attorney and counsel for the city and every agency thereof and shall have charge and conduct of all the law business

of the city and its agencies and in which the city is interested.” N.Y.C. Charter § 394(a).

Nieves v. City of New York, 208 F.R.D. 531, 535 (S.D.N.Y. 2002) (noting purposes of Rule 37

sanctions: “(1) obtaining compliance with discovery orders; (2) ensuring the disobedient party

does not benefit from non-compliance; and (3) providing a general deterrent in the particular case

and litigation in general” (collecting cases)); see also Flagg v. City of Detroit, No. 05–74253, 2011

WL 4634245, at *10 (E.D. Mich. Oct. 5, 2011) (declining to sanction “rank-and-file” employees

who were derelict in their duties because the record “reflect[ed] a more systemic failure by the

City and its law department to put policies and procedures into place that ensure the City’s

compliance with its obligations as a party to civil litigation”).

Accordingly, Plaintiff’s motion for spoliation sanctions is granted only insofar as Plaintiff

seeks attorneys’ fees and costs and only against the City and the Law Department.

CONCLUSION

For the foregoing reasons, Defendants’ motion for summary judgment is GRANTED and

Plaintiff’s motion for spoliation sanctions is GRANTED IN PART AND DENIED IN PART.

IT IS HEREBY ORDERED that the City of New York and the New York City Law

Department shall pay the expenses, including attorneys’ fees and out-of-pocket costs, reasonably

incurred by Plaintiff as a result of their failure to preserve the photographs on Officer Malvagna’s

cell phone, the 911 calls, and the radio transmissions, including the fees and costs reasonably

incurred to discover the spoliation, to investigate what happened to the destroyed ESI, to raise and

address issues regarding the spoliation of the ESI with Defendants and the Court, and to prepare

to litigate the motion leading to the the portion of this Memorandum Opinion and Order addressing

spoliation sanctions. The monetary sanctions shall be imposed jointly and severally upon the City

and the Law Department.

IT IS FURTHER ORDERED that Plaintiff shall submit a declaration evidencing his

recoverable fees and costs on or before October 13, 2021, accompanied by a memorandum of law

not to exceed ten pages in length. All sums requested must be supported by admissible evidence,

including properly authenticated copies of counsel’s relevant time and expense records. The City

and Law Department may file a response with any objections, solely addressed to the amount of

Plaintiff’s recoverable fees and costs, on or before November 3, 2021. There shall be no reply.

The Clerk of Court is respectfully requested to terminate docket entries 84 and 91 and enter

judgment for defendants.

SO ORDERED. | i . .

Date: September 21, 2021 van fay v

New York, NY United States District Judge

31