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November 30, 2010


The opinion of the court was delivered by: David N. Hurd United States District Judge




Plaintiff Derek DeMeo ("plaintiff" or "DeMeo") brings this action against the defendants for violations of his federal and New York state constitutional rights and for state tort claims arising from an altercation outside The Bayou cafe located in Albany, New York, on December 10, 2006. The four defendants include New York State Police officers Joshua Kean ("Kean") and M.K. Reyner ("Reyner"), Phlip 'N Spill, Inc. ("Phlip 'N Spill"), and its employee Dorian Tucker ("Tucker").

Tucker and Phlip 'N Spill have moved for partial summary judgment on the alleged section 1983 violations, New York constitutional claims, and false arrest cause of action. Kean has moved for partial summary judgment on the unlawful search and seizure, false arrest, and unlawful imprisonment claims.*fn1 Reyner seeks summary judgment of all claims against him.

DeMeo opposes all motions for summary judgment and has filed a cross-motion in limine against Reyner and Phlip 'N Spill regarding the destruction of video evidence. Plaintiff's cross-motion seeks: (1) default judgment declaring Phlip 'N Spill and Reyner liable for the destruction of material video evidence; (2) default judgment declaring that the destroyed video evidence depicted Tucker and Kean assaulting DeMeo; (3) an order precluding defendants from offering evidence at trial with respect to the videos; (4) a jury instruction acknowledging that Phlip 'N Spill and Reyner destroyed the video evidence; and (5) all costs and fees incurred by plaintiff during the course of attempting to discover and obtain the video evidence.

Oral argument was held on November 22, 2010, in Utica, New York. Decision was reserved.


On the evening of December 9, 2006, DeMeo and several friends drove from Schenectady to Albany for a night out. Plaintiff consumed at least five alcoholic drinks between 7:00p.m. on December 9 and 1:00a.m. on December 10. At approximately 2:00a.m. on December 10, 2006, plaintiff approached The Bayou cafe, located on the corner of North Pearl Street and Columbia Street in Albany. What occurred next is in dispute.

A. Defendants' Version of the Events

Defendants claim that DeMeo approached The Bayou cafe in a group that then engaged in a verbal, and briefly physical, confrontation with another group of people. During the confrontation, Reyner detained DeMeo's friend (Roger Press) with the assistance of Kean. At some point thereafter, Kean attempted to disperse the agitated crowd of which plaintiff was a part. It was at this point that plaintiff suffered injuries.

Kean denies restraining or pushing DeMeo and claims that plaintiff, who was highly intoxicated, fell into the wall of a building on his own account. Reyner denies having any personal involvement in the alleged physical assault on plaintiff. Tucker-a bouncer at The Bayou cafe-denies any involvement in the alleged assault.

B. Plaintiff's Version of the Events

DeMeo maintains that he approached The Bayou cafe with only one other friend as the rest of his group had previously arrived at the bar. He denies being involved in an altercation with another group of people and asserts that when he arrived at the bar, his friend Roger Press was already being detained by police.

DeMeo alleges that shortly after his arrival outside the bar, Tucker approached him from the left and grabbed him around the neck. Kean then grabbed plaintiff as well and, together with Tucker, dragged him away from the scene, across the street, and smashed his face into the wall, causing serious physical injury. Kean then held plaintiff on the ground as he struggled to get free.

DeMeo alleges that Reyner, while admittedly not a part of the direct physical assault, eventually pulled Kean off plaintiff and instructed Tucker to leave the scene. Plaintiff was thereafter transported to the hospital by ambulance. He further claims that Reyner intimidated witnesses at the scene, falsified police reports, and destroyed evidence.

C. Destruction of Video Evidence

The Bayou cafe had in place a video surveillance system at the time of the incident in question. There were two cameras covering the area where plaintiff was allegedly assaulted-one located inside the bar pointing out through the front window ("Camera 2") and one mounted on a building across the street pointing towards the front of the bar ("Camera 11"). See Dkt. No. 83, Ex. A, at 4--11. These cameras were reportedly purchased and installed by the owner of The Bayou cafe, Ralph Spillenger ("Spillenger"). See id. "All personnel" of The Bayou cafe had access to an office inside the bar where the images from the surveillance cameras could be viewed and were ultimately stored on a computer hard drive. Dkt. No. 83, Ex. Q, at 20.

At approximately 3:00a.m. on December 10, 2006, only hours after the incident, Reyner reportedly viewed the video surveillance with Spillenger. Dkt. No. 83, Ex. A, at 11. On December 22, 2006, the Supreme Court, Albany County, ordered the preservation of all video recordings relating to the incident. Dkt. No. 83, Ex. F. Reyner again viewed the video around Christmas 2006 while at The Bayou cafe on a separate investigation. Dkt. No. 70, Ex. 3, at 5, 15--16. On January 22, 2007, the Supreme Court, Albany County, ordered that the video recordings be filed with that court and a copy be provided to plaintiff's counsel. Dkt. No. 83, Ex. I.

On February 21, 2007, DeMeo's private investigator, Theresa Balfe ("Balfe"), viewed the videos and noted that critical sections had been "cut" from Camera 11, which had the best angle to capture the incident in question. Dkt. No. 83, Ex. C, at 137. Specifically, Balfe testified that after plaintiff is seen approaching the bar, the time stamp on the video skipped from 2:05.43a.m. to 2:05.55a.m.-indicating that 12 full seconds were missing. Id. Balfe claimed that the video also skipped from 2:05.57a.m. to 2:06.13a.m.-indicating a loss of 16 seconds. Id. at 106. By comparing the times with the Camera 2 images, Balfe concluded that these sections of video corresponded with the exact moments that plaintiff was allegedly assaulted. Id. at 137--38. Finally, Balfe indicated that the Camera 11 video was also missing 13 seconds between 2:15.38a.m. and 2:15.51a.m., when DeMeo was loaded into the ambulance. Id. at 104. These three gaps, totaling approximately 41 seconds, were the only gaps noted in the Camera 11 video. See id. at 164--65.

It is undisputed that at some point after February 2007 the video recordings were lost or destroyed. Plaintiff concludes that Reyner and Phlip 'N Spill together partially erased and ultimately destroyed this evidence. The defendants deny deliberately destroying any evidence and maintain that the video surveillance system was unreliable and of poor quality. Defendants claim that the video was inadvertently recorded over by Spillenger's wife.

On October 10, 2007, DeMeo moved for a contempt order in the Supreme Court, Albany County, for defendants' failure to comply with the December 22, 2006, and January 22, 2007, orders. Dkt. No. 83, Ex. L. In an order dated January 2, 2009, the Supreme Court found that Phlip 'N Spill's lack of compliance was not willful and denied DeMeo's motion for a finding of criminal and civil contempt. Dkt. No. 83, Ex. J. Plaintiff appealed this order to the Appellate Division, Third Department, which affirmed and held that he failed "to establish prejudice as a result of respondent's failure to preserve the video recordings." DeMeo v. City of Albany, 73 A.D.3d 1316, 1317 (N.Y. App. Div. 3d Dep't 2010).


A. Summary Judgment Standard

The entry of summary judgment is warranted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); seeCelotex Corp. v. Catrett,477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 247, 106 S. Ct. 2505, 2509--10 (1986). A fact is "material" for purposes of this inquiry if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S. Ct. at 2510; seealsoJeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S. Ct. at 2510.

When summary judgment is sought, the moving party bears the initial burden of demonstrating that there is no genuine issue of material fact to be decided with respect to any essential element of the claim. Anderson,477 U.S. at 250 n.4, 106 S. Ct. at 2511 n.4. The failure to meet this burden warrants denial of the motion. Id. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material issue of fact for trial. Id. at 250, 106 S. Ct. at 2511; Fed. R. Civ. P. 56(e).

When deciding a summary judgment motion, a court must resolve any ambiguities and draw all inferences from the facts in a light most favorable to the nonmoving party. Jeffreys, 426 F.3d at 553. Summary judgment is inappropriate where "review of the record reveals sufficient evidence for a rational trier of fact to find in the [non-movant's] favor." Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (citation omitted); see also Anderson, 477 U.S. at 250, 106 S. Ct. at 2511 (summary judgment is appropriate only when "there can be but one reasonable conclusion as to the verdict").

B. Section 1983 and New York State ...

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