United States District Court, S.D. New York
January 11, 2005.
LAMONT SMITH and LISA SMITH, Plaintiffs,
THE CITY OF NEW YORK, and DETECTIVE FRANKIE ROSADO, Defendants.
The opinion of the court was delivered by: WILLIAM PAULEY, District Judge
MEMORANDUM & ORDER
This federal civil rights action involves claims by Lamont
Smith for false arrest, false imprisonment, malicious
prosecution, and deprivation of his Fourth, Fifth, Sixth and
Fourteenth Amendment rights. Plaintiff Lisa Smith asserts a claim
for loss of consortium under New York law as a result of the
arrest and criminal proceeding against her husband, Lamont Smith.
Defendants move for summary judgment pursuant to Rule 56 of the
Federal Rules of Civil Procedure.*fn1 Plaintiffs move for sanctions against defendants for their failure to preserve
certain documents relevant to this action. For the following
reasons, defendants' motion for summary judgment is granted and
plaintiffs' motion for sanctions is denied.
On August 4, 2001, Lamont Smith was arrested and charged with
the rape of a seventeen year-old female acquaintance identified
as "D.G." (Defendants' Statement Pursuant to Rule 56.1 ("Defs.
56.1 Stmt.") ¶¶ 11, 33-34; Deposition of Frankie Rosado, dated
January 14, 2004 ("Rosado Dep.") at 55; Declaration of Seth D.
Eichenholtz, dated March 12, 2004 ("Eichenholtz Decl.") Ex. D;
Deposition of Lamont Smith, dated November 19, 2003 ("Smith
Dep.") at 41.) While driving his van the prior evening, Smith
picked D.G. up and then left her on a street in Mount Vernon
early in the morning of August 4, 2001. (Smith Dep. at 41, 58-59;
Affidavit of Lamont Smith, dated April 5, 2004 ("Smith Aff.") ¶¶
1-19; Eichenholtz Decl. Ex. F.)*fn2 D.G ran to a nearby
house for assistance. (Eichenholtz Decl. Ex. F.) The Mount Vernon police interviewed
D.G. and transported her to the Emergency Room at Montefiore
Medical Center (the "Hospital"). (Eichenholtz Decl. Ex. F.)
Hospital staff notified the New York City Police Department.
New York City Police officer Rosado was assigned to investigate
D.G.'s complaint. (Rosado Dep. at 29.) Rosado spoke with other
police personnel at the Hospital, who informed him of what they
had learned from the Mount Vernon police. (Rosado Dep. at 29,
31-32.) Rosado also spoke with D.G. and then went to D.G.'s home
in an attempt to locate her mother. (Rosado Dep. at 30-31.)
Meanwhile, Smith went to D.G.'s home, picked up D.G.'s mother
and took her to the Hospital. (Smith Dep. at 67, 70.) When they
arrived, Hospital security guards prevented Smith from leaving
and notified Rosado. (Rosado Dep. at 42, 83; Smith Dep. at
73-74.) Rosado returned to the Hospital where other police personnel informed him that Smith had been apprehended by
security staff as he attempted to leave. (Eichenholtz Decl. Ex.
B.)*fn3 Rosado then spoke with D.G., who was crying and
appeared to be upset. (Rosado Dep. at 44.) D.G. described the
rape to Rosado and identified Smith as the perpetrator. (Rosado
Dep. at 45-46, 48-49.) The Hospital's treating doctor advised
Rosado that he had not observed any physical injuries on D.G. and
that a "rape kit" was being prepared. (Rosado Dep. at 50-51.) At
the time, Rosado observed that it was odd for a rape suspect to
accompany the victim's mother to the Hospital and that he
personally believed Smith's claim of innocence. (Deposition of
Loretta McCoy, dated February 17, 2004 ("McCoy Dep.") at 28-29.)
Thereafter, Rosado arrested Smith. (Rosado Dep. at 55-56.)
Rosado swore out a criminal complaint at the Bronx District
Attorney's Office. (Eichenholtz Decl. Ex. B.) Smith was arraigned
on August 5, 2001, and released on August 10, 2001. (Smith Aff.
¶¶ 40-41.) Assistant District Attorney Rachel Singer interviewed
D.G. several days after the alleged attack and concluded she was
credible. However, the rape kit yielded no physical evidence. (Singer Dep. at 90-91, 93, 140,
142, 148.) A.D.A. Singer did not put D.G. into the grand jury
because D.G. was too distraught by an unrelated family crisis.
(Singer Dep. at 75-76, 123-26, 131, 139, 141, 148, 154.) On May
1, 2002, the rape charge was dismissed for failure to comply with
New York's speedy trial rules, N.Y.C.P.L. § 30.20 (McKinney
2003). (Eichenholtz Decl. Ex. I. at 3; Singer Dep. at 117-18.)
On July 22, 2002, plaintiffs filed a notice of claim against
the City of New York and commenced this action on April 30, 2003.
I. Defendants' Motion for Summary Judgment
A. Summary Judgment Standard
Courts may grant summary judgment only if "there is no genuine
issue as to any material fact" and "the moving party is entitled
to summary judgment as a matter of law." Fed.R.Civ.P. 56(c).
The movant bears the burden of establishing that no genuine
issues of material fact exist. Celotex Corp. v. Catrett,
477 U.S. 317, 322-24 (1986); accord McLee v. Chrysler Corp.,
109 F.3d 130, 134 (2d Cir. 1997). Once the movant satisfies this
requirement, the burden shifts to the non-moving party "to make a
showing sufficient to establish the existence of an element essential to that party's case, and on which that
party will bear the burden of proof at trial." Celotex,
477 U.S. at 322. The court is required to resolve any ambiguities and
to make all reasonable inferences in favor of the non-moving
party. Flanigan v. Gen. Elec. Co., 242 F.3d 78, 83 (2d Cir.
2001). A genuine issue of material fact exists when "a reasonable
jury could return a verdict for the nonmoving party." Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
B. False Arrest and False Imprisonment
The elements of a false arrest or false imprisonment claim are
similar under New York law and Section 1983 based on the Fourth
Amendment right to be free of unreasonable searches and seizures.
See Hygh v. Jacobs, 961 F.2d 359, 366 (2d Cir. 1992); Dukes
v. City of New York, 879 F. Supp. 335, 340 (S.D.N.Y. 1995); see
also Brome v. City of New York, No. 02 Civ. 7184 (WHP), 2004
WL 502645, at *3 (S.D.N.Y. Mar. 15, 2004) (false arrest and false
imprisonment claims are synonymous under New York law). To
establish a false arrest claim, a plaintiff must show that: (1)
the defendant intentionally confined the plaintiff; (2) the
plaintiff was aware of the confinement; (3) the plaintiff did not
consent to the confinement; and (4) the confinement was not
otherwise privileged. Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994); Dukes,
879 F. Supp. at 340.
Defendants maintain that plaintiffs' state law false arrest and
false imprisonment claims are time-barred. Under New York law, a
notice of claim is a necessary precondition to bringing a tort
claim against a municipality or its officers. See N.Y. Gen.
Mun. Law §§ 50-e, 50(1)(a). A plaintiff must file his notice of
claim within ninety days after the claim arises and commence the
action within one year and ninety days from the date the cause of
action accrues. See N.Y. Gen. Mun. Law §§ 50-e, 50(1)(a). The
"failure to comply with provisions requiring notice of claims
prior to the commencement of litigation ordinarily requires
dismissal." Davidson v. Bronx Mun. Hosp., 64 N.Y. 2d 59, 61-62
(1984); see also Hardy v. New York City Health & Hosps.
Corp., 164 F.3d 789, 793 (2d Cir. 1999) ("[I]n a federal court,
state notice-of-claim statutes apply to state-law claims.").
Smith was arrested on August 4, 2001 and released from custody
on August 10, 2001. (Rosado Dep. at 55-56; Smith Aff. ¶¶ 40-41.)
Smith's false arrest/false imprisonment claim accrued on August
10, 2001, when he was released from custody. See Geressy v.
Digital Equip. Corp., 980 F. Supp. 640, 652 (E.D.N.Y. 1997).
Plaintiffs did not file their notice of claim until July 22, 2002
(Affirmation of Wale Mosaku, dated April 5, 2004 ("Mosaku Aff.") Ex. 1), and did not commence this action
until April 30, 2003. Accordingly, defendants are entitled to
summary judgment as to Smith's state law false arrest and false
imprisonment claims because they are untimely under N.Y. Gen.
Mun. Law §§ 50-e, 50(1)(a).
Rosado contends that he is entitled to summary judgment on
Smith's Section 1983 false arrest claim against him in his
individual capacity because he had probable cause to apprehend
Smith. Probable cause constitutes a complete defense to a claim
for false arrest. Bernard, 25 F.3d at 102. Probable cause
exists "when the arresting officer has `knowledge or reasonably
trustworthy information of facts and circumstances that are
sufficient to warrant a person of reasonable caution in the
belief that the person to be arrested has committed or is
committing a crime.'" Escalara v. Lunn, 361 F.3d 737, 743 (2d
Cir. 2004) (quoting Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.
1996)). The probable cause inquiry is an objective one. Dukes,
879 F. Supp. at 340. Accordingly, "[p]robable cause can exist
even where it is based on mistaken information, so long as the
arresting officer acted reasonably and in good faith in relying
on that information." Bernard, 25 F.3d at 102-03.
Here, Rosado had probable cause to arrest Smith at the Hospital
on August 4, 2001 based on D.G.'s in-person identification of
Smith and her description of the alleged rape. (Rosado Dep. at 29, 31-32, 45-46, 48-49.) "[I]t 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." Martinez v.
Simonetti, 202 F.3d 625, 634 (2d Cir. 2000) (citation and
internal quotations omitted); Donovan v. Briggs, 250 F. Supp. 2d 242,
251-52 (W.D.N.Y. 2003) ("Both New York State and
federal courts have held that a purported crime victim's identification
of the alleged culprit will generally suffice to create probable
cause to arrest.") (citing cases); Dukes, 879 F. Supp. at 340
("[I]n-person identifications by a witness are sufficient to make
out probable cause for arrest."); Orminski v. Vill. of Lake
Placid, 268 A.D.2d 780, 781, 702 N.Y.S.2d 181, 183 (App.Div. 3d
Dep't 2000) ("[I]nformation provided by an identified citizen
accusing another individual of the commission of a specific crime
is sufficient to provide the police with probable cause to
arrest.") (citation and internal quotations omitted). Rosado was
entitled to rely on D.G.'s identification of Smith as the basis
for his arrest because "`the veracity of citizen complaints who
are the victims of the very crimes they report to the police is
assumed.'" Oblio v. City Univ. of the City of New York, No.
Civ. 01-5118 (DGT), 2003 WL 1809471, at *7 (E.D.N.Y. Apr. 7,
2003) (quoting Miloslavsky v. AES Eng'g Soc'y., Inc.,
808 F. Supp. 351, 355 (S.D.N.Y. 1992)). Apart from D.G.'s identification of Smith and her description
of the alleged assault, Rosado relied on information from other
police personnel concerning the events of August 3-4, 2001.
(Rosado Dep. at 29, 31-32; Eichenholtz Decl. Ex. F.) That
information constituted further probable cause under the
collective knowledge doctrine. See United States v. Colon,
250 F.3d 130, 135 (2d Cir. 2001) ("[A]n arrest or search is
permissible where the actual arresting or searching officer lacks
the specific information to form the basis for probable cause or
reasonable suspicion but sufficient information to justify the
arrest or search was known by other law enforcement officials
initiating or involved with the investigation."); United States
v. LaVallee, 517 F.2d 750, 753 (2d Cir. 1975) ("The [probable
cause] assessment by the courts is to be made on the basis of the
collective knowledge of the police rather than on that of the
arresting officer alone.")
Plaintiffs argue that Rosado lacked probable cause because the
doctors who examined D.G. did not find any physical evidence that
she had been raped. (Rosado Dep. at 51.) Plaintiffs note,
moreover, that Rosado knew Smith had accompanied D.G.'s mother to
the Hospital and stated that he believed Smith's claim of
innocence. (McCoy Dep. at 28-29; Rosado Dep. at 59.) These
arguments are without merit because it is well established that
"[o]nce officers possess facts sufficient to establish probable cause, they are neither required
nor allowed to sit as prosecutor, judge or jury." Krause v.
Bennett, 887 F.2d 362, 372 (2d Cir. 1989); United States v.
Webb, 623 F.2d 758, 761 (2d Cir. 1980) ("[F]acts ostensibly
sufficient to establish probable cause for an arrest are not
negated simply because such facts also may be consistent with the
suspect's innocence."); Dukes, 879 F. Supp. at 434 ("Police
officers need not conduct an investigation which exculpates an
arrestee."). Moreover, Rosado's subjective belief as to Smith's
innocence does not undermine the objective factors on which
Rosado relied in making the arrest. See United States v.
$557,933.89, More or Less, in United States Funds, 287 F.3d 66,
85 (2d Cir. 2002) ("[T]he determination of probable cause is an
objective one, to be made without regard to the individual
officer's subjective motives or belief as to the existence of
probable cause."). Accordingly, it would have been improper, and
unnecessary, for Rosado to probe the veracity of D.G.'s
allegations given her identification of Smith and the other
police officers' descriptions of the events of August 3, 2001.
Additionally, even if defendants were unable to demonstrate
actual probable cause, Rosado is entitled to qualified immunity
from suit in his individual capacity under Section 1983. Rosado's
objectively reasonable belief that the totality of the
circumstances warranted Smith's arrest gives rise to qualified immunity. See Thomas v. County of Putnam,
262 F. Supp. 2d 241, 247 (S.D.N.Y. 2003) ("A police officer is
entitled to qualified immunity as a matter of law if the evidence
shows `either (a) that it was objectively reasonable for the
officer to believe that probable cause existed, or (b) that
officers of reasonable competence could disagree on whether the
probable cause test was met.'") (quoting Robinson v. Via,
821 F.2d 913, 921 (2d Cir. 1987)); see also Orminski,
268 A.D.2d at 781, 702 N.Y.S.2d at 182 (officer had probable cause to arrest
alleged culprit where "the complainant reported the alleged crime
within hours of its occurrence, endured a rape kit examination at
the local hospital and presented herself in such a way that [the
arresting officer] believed her accusations to be true").
This Court holds, therefore, that Rosado is entitled to summary
judgment as to plaintiffs' Section 1983 claims for false arrest
and false imprisonment based on probable cause and qualified
C. Malicious Prosecution
Claims for malicious prosecution are similar under New York law
and Section 1983. Boyd v. City of New York, 336 F.3d 72, 75 (2d
Cir. 2003). To establish a claim for malicious prosecution, a
plaintiff must show that: (1) the defendant initiated and continued a criminal proceeding against him; (2)
the proceeding terminated in plaintiff's favor; (3) there was no
probable cause for that proceeding; and (4) the defendant
commenced the criminal proceeding with malice. See O'Brien v.
Alexander, 101 F.3d 1479, 1484 (2d Cir. 1996).
Plaintiffs have adduced no evidence to satisfy the third and
fourth elements of their malicious prosecution claim. As
discussed, Rosado had probable cause for Smith's arrest. Probable
cause to arrest is a defense to a malicious prosecution claim
unless, after the arrest, additional facts come to light that
vitiate the probable cause. See Dukes, 879 F. Supp. at 342
(citing Oakley v. Rochester, 71 A.D.2d 15, 19,
421 N.Y.S.2d 472, 474-75 (App.Div. 4th Dep't 1979)). There is no evidence
that Rosado was involved with the criminal proceeding against
Smith after he signed the affidavit for the criminal complaint on
August 4, 2001. (Eichenholtz Decl. Ex. B.) Plaintiffs have
proffered no facts showing that Rosado learned of information
before he signed the affidavit that undermined the probable cause
for Smith's arrest. Accordingly, Rosado's probable cause to
arrest Smith is a complete defense to the malicious prosecution
claim. See Thomas, 262 F. Supp. 2d at 251 (finding of
probable cause to arrest compelled dismissal of malicious
prosecution claim); Dukes, 879 F. Supp. at 342. Further, there are no facts indicating that it was unreasonable
for Rosado to believe probable cause existed when his involvement
in the proceeding ceased on August 4, 2001. Although the doctors
who treated D.G. found no physical evidence of rape (Rosado Dep.
at 51), it was reasonable for Rosado to rely on her
identification of Smith and the other officer's descriptions of
what purportedly had occurred. See Colon, 250 F.3d at 135
(imputed knowledge doctrine); Martinez, 202 F.3d at 634
(in-person identification constitutes sufficient probable cause
to arrest). Rosado is thus entitled to qualified immunity from
the malicious prosecution claim. See Rogers v. City of
Amsterdam, 303 F.3d 155, 159 (2d Cir. 2002) (defendant police
officer entitled to qualified immunity from malicious prosecution
claim where reasonable officers could disagree over whether there
was probable cause to arrest and "nothing occurred between the
arrest and prosecution to alter this"); Rohman v. New York City
Transit Auth., 215 F.3d 208, 217-18 (2d Cir. 2000) (official
entitled to qualified immunity from malicious prosecution since
"[t]here [was] no evidence . . . suggesting that after
[defendant] completed his report to the police . . . he did
anything further with respect to [plaintiff's] arrest or
Summary judgment must also be granted as to the state law
malicious prosecution claim against the City. Plaintiffs have submitted no evidence suggesting that the Bronx District
Attorney commenced and continued the proceeding with malice, that
is, a "wrong or improper motive, something other than a desire to
see the ends of justice served." Lowth v. Town of Cheektowaga,
82 F.3d 563, 573 (2d Cir. 1996). To the contrary, A.D.A. Singer
testified that she believed D.G.'s allegations and found her to
be a credible witness. (Singer Dep. at 140, 142, 148.)
Plaintiffs' conclusory assertion that "the prosecution was
commenced and continued for an improper motive" (Plaintiffs'
Memorandum of Law in Opposition to Defendants' Motion for Summary
Judgment ("Pls. Mem.") at 16), is insufficient to withstand
summary judgment. See Kuriakose v. City of Mount Vernon,
41 F. Supp. 2d 460, 467 (S.D.N.Y. 1999) (granting summary judgment
on malicious prosecution claim where "plaintiff offer[ed] only
conclusory allegations" to show criminal proceeding was initiated
with malice); see also Donovan, 250 F. Supp. 2d at 261
(granting summary judgment on issue of malice where there was "no
evidence that [defendant] had any personal animus toward
plaintiff, or that he acted with a reckless or grossly negligent
disregard of the plaintiff's rights.") (citation and internal
For the foregoing reasons, defendants' motion for summary
judgment as to the claim of malicious prosecution is granted. Because defendants are entitled to summary judgment as to
plaintiffs' false arrest and malicious prosecution claims, Lisa
Smith's derivative claim for loss of consortium also must be
dismissed. See Saghezi v. Reno, No. 94 Civ. 8291 (HB), 1996
WL 524338, at *10 (S.D.N.Y. Sept. 16, 1996) ("Because both loss
of consortium claims are derivative claims, if plaintiff's claims
for false arrest and imprisonment fail, the loss of consortium
claims also fail."); Jenks v. City of New York, No. 91 Civ.
3639 (RLC), 1992 WL 147647, at *9 (S.D.N.Y. June 15, 1992)
("Since loss of consortium is a derivative claim, it can only
survive if one of [plaintiff's] spouse's claims is viable.").
D. The City's Liability Under Section 1983
To hold a municipality liable pursuant to Section 1983 for the
conduct of employees below the policymaking level, a plaintiff
must demonstrate that the violation of his constitutional rights
resulted from the municipality's custom or policy. See Monell
v. Dept. of Soc. Servs., 436 U.S. 658, 694 (1978); City of
Canton, Ohio v. Harris, 489 U.S. 378, 388-89 (1989) (failure to
train may serve as the basis for Section 1983 liability "where
the failure to train amounts to deliberate indifference").*fn4 Such a policy or custom may be inferred
from "circumstantial proof, such as evidence that the
municipality so failed to train its employees as to display a
deliberate indifference to the constitutional rights of those
within its jurisdiction." Ricciuti v. New York Transit Auth.,
941 F.2d 119, 123 (2d Cir. 1991). However, the mere assertion
that such a policy exists "is insufficient in the absence of
allegations of fact tending to support, at least
circumstantially, such an inference." Dwares v. City of New
York, 985 F.2d 94, 100 (2d Cir. 1993) (citing Batista v.
Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983)).
Defendants' motion for summary judgment must be granted because
the record is bereft of anything other than a single incident
namely, Smith's arrest and the commencement of proceedings
against him. (Eichenholtz Decl. Ex. I. at 3; Rosado Dep. at
55-56; Singer Dep. at 117-18; Smith Aff. ¶¶ 40-41.) "Proof of a
single incident of unconstitutional activity is not sufficient to
impose liability under Monell." See City of Oklahoma City v.
Tuttle, 471 U.S. 808, 823-24 (1985); cf. Powe v. City of
Chicago, 664 F.2d 639, 651 (7th Cir. 1981) ("[A] pattern of
conduct or a series of acts violative of constitutional rights will in many cases raise an inference of a
Moreover, plaintiffs have adduced no evidence of inadequacies
in the City's training of its police and assistant district
attorneys. Nor have plaintiffs come forward with facts
demonstrating a nexus between any purported inadequacies and the
alleged constitutional violations. Plaintiffs' failure to proffer
specific facts showing the City's failure to train its employees
or anything more than a single incident is fatal to their
Monell claims. See Amnesty Am. v. Town of West Hartford,
361 F.3d 113, 130 n. 10 (2d Cir. 2004) ("After discovery . . . a
plaintiff is expected to proffer evidence from which a reasonable
factfinder could conclude that [defendant's] training program was
actually inadequate, and that the inadequacy was closely related
to the violation."); Ricciuti, 941 F.2d at 123 ("[A] single
incident . . . especially if it involved actors below the
policy-making level, does not suffice to show a municipal
Accordingly, the City's motion for summary judgment is granted
as to plaintiffs' Section 1983 claims for false arrest, malicious
prosecution, and deprivation of Lamont Smith's Fifth, Sixth and
Fourteenth Amendment rights. II. Plaintiffs' Motion for Sanctions
Plaintiffs move for sanctions based on Rosado's alleged failure
to locate certain notes that he may have taken on August 4, 2001
before the arrest, and the Bronx District Attorney's Office's
failure to locate its file on Smith.
Courts have authority to sanction the loss or destruction of
evidence pursuant to Rule 37(b) and their inherent power. Turner
v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 72 (S.D.N.Y.
1991). A party to litigation has an obligation to retain evidence
that it knows, or should know, may be relevant to actual or
foreseeable litigation. See Barsoum v. New York City Hous.
Auth., 202 F.R.D. 396, 400 (S.D.N.Y. 2001). For sanctions to be
imposed, a party must establish that: (1) the party with control
over the evidence had a duty to preserve it when it was lost or
destroyed; (2) the evidence was lost or destroyed with a
"culpable state of mind"; and (3) the evidence was relevant.
See Residential Funding Corp. v. DeGeorge Fin. Corp.,
306 F.3d 99, 107 (2d Cir. 2002). Sanctions may be imposed for both
intentional and negligent destruction of evidence. See Ramirez
v. Avery Berkel, Inc., 2004 U.S. Dist. LEXIS 4510, at *30
(S.D.N.Y. Mar. 16, 2004).
"In determining whether a court should exercise its authority
to impose sanctions for spoliation, a threshold question is
whether a party had any obligation to preserve the evidence." Turner, 142 F.R.D. at 72. The obligation to preserve
evidence may arise through a discovery request, through
information alleged in the complaint, or prior to the initiation
of litigation where a party is on notice that legal proceedings
are likely. Turner, 142 F.R.D. at 73; Capellupo v. FMC Corp.,
126 F.R.D. 545 (D. Minn. 1989); Alliance to End Repression v.
Rochford, 75 F.R.D. 438 (N.D. Ill. 1976)). There must be a
factual basis for a party to be on notice that litigation is
likely to be commenced. See Capellupo, 126 F.R.D. at 549-50
(finding defendant on notice of potential class action at the
time of document destruction based on entries evincing such
knowledge in general counsel's calendar); Alliance to End
Repression, 75 F.R.D. at 440 (same finding based on reports, of
which defendant was aware, that plaintiffs were about to file
Here, there is no evidence that Rosado actually misplaced any
notes he took on August 4, 2001. Rosado stated that he may have
taken some personal notes when he spoke with Smith, but does not
recall doing so. (Mosaku Aff. Ex. 26 (Affidavit of Frankie
Rosado, dated February 25, 2004, ¶¶ 3-4).) Accordingly,
plaintiffs' motion as to Rosado is wholly speculative.
Moreover, there is no evidence that defendants were under an
obligation to retain the files at the time they were allegedly misplaced. Plaintiffs bear the burden of establishing
all elements of their claim for spoliation of evidence. See
Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 109 (2d
Cir. 2001). Even if defendants misplaced those documents,
plaintiffs offer no evidence that defendants did so after the
notice of claim was filed. See Turner, 142 F.R.D. at 73.
Because plaintiffs cannot show that defendants were under an
obligation to preserve the files at issue at the time they were
purportedly misplaced, their motion for sanctions is denied.
See Byrnie, 243 F.3d at 109 ("Where one seeks an adverse
inference regarding the content of destroyed evidence, one must
first show that the party having control over the evidence . . .
had an obligation to preserve it at the time it was destroyed.")
(internal quotations and citation omitted). CONCLUSION
For the foregoing reasons, defendants' motion for summary
judgment is granted, and plaintiffs' motion for sanctions is
denied. The Clerk of the Court is directed to mark this case