Simon et al v. The City Of New York , et al

Filing 173

OPINION AND ORDER re: 158 MOTION for Summary Judgment filed by Eric Healy, Ryan Gillis, The City Of New York, Edwin Espinal. For the foregoing reasons, Defendants' motion for summary judgment is GRANTED in part and DENIED in part, and all of Plaintiffs' claims other than their false arrest claims are dismissed. Additionally, Defendants' motion to exclude Francois's expert is GRANTED and their motion for sanctions against Simon is DENIED. Per the Case Management Pla n and Scheduling Order (Docket No. 79), within thirty days of this Opinion and Order, the parties shall submit to the Court for its approval a Joint Pretrial Order prepared in accordance with the Court's Individual Rules and Practices and Rule 2 6(a)(3) of the Federal Rules of Civil Procedure. The parties shall also follow Paragraph 5 of the Court's Individual Rules and Practices, which identifies submissions that must be made at or before the time of the Joint Pretrial Order, including any motions in limine. If this action is to be tried before a jury, joint requests to charge, joint proposed verdict forms, and joint proposed voir dire questions shall be filed on or before the Joint Pretrial Order due date in accordance with the C ourt's Individual Rules and Practices. Jury instructions may not be submitted after the Joint Pretrial Order due date, unless they meet the standard of Rule 51(a)(2)(A) of the Federal Rules of Civil Procedure. If this action is to be tried to th e Court, proposed findings of fact and conclusions of law shall be filed on or before the Joint Pretrial Order due date in accordance with the Court's Individual Rules and Practices. Unless the Court orders otherwise for good cause shown, the pa rties shall be ready for trial two weeks after the Joint Pretrial Order is filed. Finally, if the parties are interested in a settlement conference before the assigned Magistrate Judge, they shall so advise the Court by joint letter as soon as possible. The Clerk of Court is directed to terminate Docket No. 158. (Signed by Judge Jesse M. Furman on 1/5/2017) (cla)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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COURTNEY SIMON, et al.,
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Plaintiffs,
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-v:
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CITY OF NEW YORK, et al.,
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:
Defendants.
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1/5/2017

14-CV-8391 (JMF)
OPINION AND ORDER

JESSE M. FURMAN, United States District Judge:
In this civil rights case, four men bring claims against the City of New York (the “City”)
and several New York City Police Department (“NYPD”) officers arising from their arrests on
April 10, 2014. Specifically, Plaintiffs Courtney Simon, Keyshawn Francois, Vincent Phinizy,
and Marcus Creer bring false arrest and failure-to-intervene claims, among others, against the
City, Officer Edwin Espinal, Sergeant Ryan Gillis, Officer Eric Healy, and Lieutenant Jeremy
Scheublin. 1 Defendants now move, pursuant to Rule 56 of the Federal Rules of Civil Procedure,
for summary judgment on all of Plaintiffs’ claims. 2 Defendants also move to preclude Francois
from calling an expert and for spoliation sanctions against Simon. For the reasons stated below,

1

When this case was originally filed, there was a fifth Plaintiff: Christian McKnight.
Thereafter, Plaintiffs moved to amend the Complaint to remove McKnight’s claims (without
prejudice) (Docket No. 132), a motion that was granted by the Court with Defendants’ consent.
(Docket No. 149). Although McKnight’s name still appears in the Second Amended Complaint
(Docket No. 155), the parties make no reference to his claims in their summary judgment
briefing and the Court treats the claims as dismissed.
2

Defendants filed their motion for summary judgment before Lieutenant Scheublin was
served with the complaint, but Scheublin nevertheless joins the motion. (Docket No. 170
(“Defs.’ Reply Mem.”) 9-10).

Defendants’ motion for summary judgment is granted in part and denied in part, their motion to
preclude Francois’s expert is granted and their motion for sanctions is denied.
BACKGROUND
The relevant facts, taken from materials submitted by the parties, are either undisputed or
described in the light most favorable to Plaintiffs. See Costello v. City of Burlington, 632 F.3d
41, 45 (2d Cir. 2011). Plaintiffs’ claims arise out of an incident that occurred on April 10, 2014.
Starting at approximately 9:20 p.m. on that night, the police received several 911 calls regarding
shots fired in the vicinity of Odell Street and Starling Avenue in Parkchester, an area of the
Bronx. (See Docket No. 161 (“Defs.’ SOF”) ¶¶ 1-4). One caller indicated that a group of “more
than 60 male blacks” were moving toward Public School 106 on St. Raymonds Avenue, which is
a block north of Odell Street and Starling Avenue. (Id. ¶ 2). Another caller stated that he had
heard seven shots and that the group seemed to be performing a “ritual” because they were
clapping and cheering as the shots were fired. (Id. ¶ 3).
A few minutes later, Officer Espinal and Sergeant Gillis — responding to the 911 calls
and reports by uniformed personnel about the large group and shots fired — arrived in the area.
(Id. ¶¶ 6-10; see also Docket No. 171 (“Mindrutiu Supp. Decl.”), Ex. P). Soon after their arrival,
Officer Espinal observed a man, Marquis Rochester, looking back toward the police and
“fidgeting with his waistband.” (Id. ¶¶ 12, 17). Upon hearing a metal object hit the ground and
seeing a firearm on the ground next to Rochester, Officer Espinal arrested him. (Id. ¶¶ 15-17).
At the same time, Sergeant Gillis observed a group of men approaching and walking in the same
direction as Rochester on St. Raymonds Avenue. (Id. ¶ 18). The group was about fifteen feet
away from the spot where Rochester had been arrested. (Id.). After calling for backup,
Sergeant Gillis and Officer Espinal discovered a second firearm by a tree further east on the

2

south side St. Raymonds Avenue. (Id. ¶¶ 21-22, 24). Officer Espinal concluded that both guns
had been fired shortly before they were recovered because they were still warm when the officers
found them. (Id. ¶ 25).
Plaintiffs were arrested near where the firearms were recovered for criminal possession of
a weapon and unlawful assembly. (Id. ¶ 44-45). The police arrested five other men as well. (Id.
¶ 46). The District Attorney’s Office initially deferred prosecution of Plaintiffs “for further
investigation,” and eventually declined to prosecute any of them. (Id. ¶ 51).
THE SUMMARY JUDGMENT MOTION
The Court begins with Defendants’ summary judgment motion. Summary judgment is
appropriate where the admissible evidence and pleadings demonstrate “no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see also Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012) (per curiam). A dispute
qualifies as genuine “if the evidence is such that a reasonable jury could return a judgment for
the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); accord Roe v.
City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008). The moving party bears the initial burden of
demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477
U.S. 317, 325 (1986). “In moving for summary judgment against a party who will bear the
ultimate burden of proof at trial, the movant’s burden will be satisfied if he can point to an
absence of evidence to support an essential element of the nonmoving party’s claim.” Goenaga
v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (citing Celotex, 477 U.S.
at 322-23); accord PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002) (per
curiam). In ruling on a motion for summary judgment, all evidence must be viewed “in the light
most favorable to the non-moving party,” Overton v. N.Y. State Div. of Military & Naval Affairs,

3

373 F.3d 83, 89 (2d Cir. 2004), and the court must “resolve all ambiguities and draw all
permissible factual inferences in favor of the party against whom summary judgment is sought,”
Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004).
To defeat a motion for summary judgment, a non-moving party must advance more than
a “scintilla of evidence,” Anderson, 477 U.S. at 252, and demonstrate more than “some
metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). The non-moving party “cannot defeat the motion by relying on
the allegations in [its] pleading or on conclusory statements, or on mere assertions that affidavits
supporting the motion are not credible.” Gottlieb v. Cty. of Orange, 84 F.3d 511, 518 (2d Cir.
1996) (citation omitted). Affidavits submitted in support of, or opposition to, summary judgment
must be based on personal knowledge, must “set forth such facts as would be admissible in
evidence,” and must show “that the affiant is competent to testify to the matters stated therein.”
Patterson v. Cty. of Oneida, 375 F.3d 206, 219 (2d Cir. 2004) (quoting Fed. R. Civ. P. 56(e)).
A. Plaintiffs’ False Arrest Claims
Applying those standards here, Defendants’ motion to dismiss Plaintiffs’ primary claim,
for false arrest, must be denied. To establish a claim of false arrest under Title 42, United States
Code, Section 1983 or New York law, a plaintiff must demonstrate that “(1) the defendant
intended to confine [the plaintiff], (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.” Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 118 (2d Cir. 1995) (brackets in original).
Significantly, “[t]he existence of probable cause to arrest constitutes justification and is a
complete defense to an action for false arrest, whether that action is brought under state law or
under § 1983.” Jenkins v. City of N.Y., 478 F.3d 76, 84 (2d Cir. 2007). Probable cause to arrest

4

exists if the arresting officers have actual “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.” Weyant v. Okst, 101 F.3d
845, 852 (2d Cir. 1996). A court should consider the “totality of the circumstances” in
evaluating whether “the facts available to the officer at the time of arrest” meet that bar.
Caldarola v. Calabrese, 298 F.3d 156, 162 (2d Cir. 2002).
Here, Defendants argue that probable cause existed to arrest Plaintiffs for two offenses
under New York law: unlawful assembly and criminal possession of a weapon in the second
degree. (Docket No. 159 (“Defs.’ Mem.”) 6). A person is guilty of the former “when he
assembles with four or more other persons for the purpose of engaging or preparing to engage
with them in tumultuous and violent conduct likely to cause public alarm, or when, being present
at an assembly which either has or develops such purpose, he remains there with intent to
advance that purpose.” N.Y. Penal Law § 240.10. Conviction requires “an incitement which is
both directed towards and likely to produce imminent violent and tumultuous conduct.” Jones v.
Parmley, 465 F.3d 46, 59 (2d Cir. 2006); see also Shapiro v. City of N.Y., No. 94-CV-8135
(JFK), 1999 WL 64290, at *3 (S.D.N.Y. Feb. 8, 1999) (“[Section] 240.10 . . . requires that before
an individual may be charged with unlawful assembly, his actions must constitute an incitement
which is both directed towards and likely to produce imminent violent and tumultuous
conduct.”). Notably, “presence as part of a group in which some members may be threatening
violence and tumult would not suffice to establish a violation of Penal Law § 240.10, absent
evidence which supports an inference that the accused specifically shared the intent to further
that purpose.” In re Christopher M., 912 N.Y.S.2d 391, 394 (Fam. Ct. 2010), aff’d, 943
N.Y.S.2d 171 (App. Div. 2d Dep’t 2012).

5

A person is guilty of criminal possession of a weapon in the second degree “when
(1) with intent to use the same unlawfully against another, such person: (a) possesses a machinegun; or (b) possesses a loaded firearm; or (c) possesses a disguised gun.” N.Y. Penal Law
§ 265.03. “[P]ossession . . . is complete once [an individual] has dominion and control of a
weapon.” People v. Carpenter, 30 N.Y.S.3d 299, 303 (App. Div. 2d Dep’t 2016) (brackets in
original). Additionally, New York law makes it unlawful to aid and abet another in committing a
crime. A person is criminally liable as an accomplice “when, acting with the mental culpability
required for the commission thereof, he solicits, requests, commands, importunes, or
intentionally aids such person to engage in such conduct.” N.Y. Penal Law § 20.00. An
accomplice must have a shared intent, or “community of purpose” with the principal. Carpenter,
30 N.Y.S.3d at 301. In addition, “the accomplice must have intentionally aided the principal in
bringing forth a result.” Id. Thus, “accomplice liability requires, at a minimum, awareness of
the proscribed conduct and some overt act in furtherance of such.” Id.
In the present case, the Court cannot say as a matter of law that Defendants had probable
cause to arrest Plaintiffs for either offense because, among other things, there are material
disputes with respect to where each Plaintiff was when the police arrived, whether each Plaintiff
was part of a larger “group,” and whether each Plaintiff was close enough to one of the recovered
firearms to have exercised dominion and control over it. For example, Simon claims that before
his arrest he walked past the group of people, and eventually “everybody was behind [him]” and
he was not walking alongside the group. (Docket No. 162 (“Mindrutiu Decl.”), Ex. J, at 82-83).
Similarly, Creer testified that even though the whole area was cluttered with people, “[t]here was
nobody on the side of [him] period” and he “was by [him]self.” (Mindrutiu Decl., Ex. I, at 63,
65). Even Phinizy, whose account of the events is closest to Defendants’ own, noted that after

6

parking his car “[he] went into the crowd,” but that it was only “a matter of a second” before the
police had their “guns out” and were shouting “Get on the floor, everybody.” (Mindrutiu Decl.,
Ex. H, at 109-110). From that account, a jury could infer that Phinizy was across the street
parking when the police actually arrived, undermining Defendants’ claim that he was a part of
the group in the moments leading up to his arrest. And while the events were captured by video
surveillance, the video is, at best, inconclusive. (See Mindrutiu Decl., Ex. G). It shows
Rochester’s arrest and a number of people, including perhaps some Plaintiffs, being seized by
police officers. (Id. at 21:28:35-21:29:30). But it does not clearly depict a group walking
towards St. Raymonds Avenue when Defendants arrived, let alone make clear that each of the
four Plaintiffs was part of any such group. (Docket No. 168 (“Pls.’ Opp’n”), Ex. 1 ¶ 28).
Even if there were no disputes about each Plaintiff’s location, Defendants’ motion would
still fall short. First, with respect to the crime of unlawful assembly, it is far from clear what
basis Defendants had to believe that each Plaintiff “specifically shared the intent to further [the
group’s violent] purpose.” In re Christopher M., 912 N.Y.S.2d at 394. In fact, Defendants do
not contend that the arresting officers had any individualized knowledge of each Plaintiff’s
actions except insofar as they were all observed in the same general vicinity as the two firearms.
Without evidence specifically tying each Plaintiff to the earlier gunshots or the violent activities
of the group, however, the Court cannot conclude as a matter of law that Defendants had a
reasonable basis to believe that each Plaintiff “shared a community of purpose with others to
engage in imminent tumultuous and violent conduct,” as required by New York’s unlawful
assembly statute. In re Christopher M., 943 N.Y.S.2d at 172; see Maryland v. Pringle, 540 U.S.
366, 371 (2003) (“The substance of all the definitions of probable cause is a reasonable ground
for belief of guilt, and that belief of guilt must be particularized with respect to the person to be

7

searched or seized.” (citations omitted)); Dinler v. City of N.Y., No. 04-CV-7921 (RJS) (JCF),
2012 WL 4513352, at *3 (S.D.N.Y. Sept. 30, 2012) (“[P]robable cause must be particular to the
individual being arrested.”).
Similarly, a reasonable jury could find that Defendants lacked probable cause to believe
that each Plaintiff was “acting in concert to possess the firearms,” (Defs.’ Mem. 8), as there is
little or no evidence that any Plaintiff shared an intent or “community of purpose” with those that
actually possessed the weapons, let alone that each Plaintiff committed an “overt act” in
furtherance of the gun possession. Carpenter, 30 N.Y.S.3d at 301; see also, e.g., Mitchell v. City
of N.Y., 841 F.3d 72, 78-79 (2d Cir. 2016) (finding no basis for a mass arrest when there was no
individualized probable cause to arrest appellants for trespass); Dinler, 2012 WL 4513352, at *3
(“[M]ere proximity to illegal conduct does not establish probable cause with respect to an
individual.”). Accordingly, drawing all inferences in favor of Plaintiffs, the Court cannot find as
a matter of law that Defendants had probable cause to arrest Plaintiffs for unlawful assembly or
criminal possession of a weapon in the second degree.
In arguing otherwise, Defendants seem to rely on a notion of “group probable cause,”
which would permit a law enforcement officer to arrest multiple people where it reasonably
appears that they are a part of a larger group, some of whose members are engaging in unlawful
conduct. See Dinler, 2012 WL 4513352, at *4 (coining the phrase “group probable cause”). The
Second Circuit, however, rejected a comparable argument in Jones v. Parmley. See 465 F.3d at
59-60. In that case, officers arrested a subset of a group of protestors and alleged that they had
violated a traffic obstruction law by stepping into a nearby interstate to distribute literature about
their cause before rejoining the larger group of protesters. See id. at 52-53. Although the Second
Circuit assumed arguendo that some of the arrested protestors had indeed violated the state

8

statute, it found the police officers’ conduct to be unreasonable because, at the time of the
arrests, none of the officers could identify the specific protestors responsible for the violations.
See id. at 59-60. As the Court reasoned, “[w]ithout the ability to identify those individuals who
had entered the . . . roadway, defendants cannot rely on [the state statute prohibiting obstruction
of traffic] to justify their actions.” Id. at 60. That is, even though some arrestees may indeed
have violated the law, the court found that the “indiscriminate” arrests of the protesters were
“without probable cause.” Id. So too here, Defendants have not put forth evidence
demonstrating as a matter of law that they had sufficiently individualized knowledge of each
Plaintiff’s conduct to justify the arrests.
In the alternative, Defendants argue that they are entitled to summary judgment on
Plaintiffs’ false arrest claims on the ground that they are protected by qualified immunity.
(Defs.’ Mem. 9-12). An officer is entitled to qualified immunity if “arguable probable cause”
existed — that is, if “a reasonable police officer in the same circumstances and possessing the
same knowledge as the officer in question could have reasonably believed that probable cause
existed in the light of well-established law.” Cerrone v. Brown, 246 F.3d 194, 202-03 (2d Cir.
2001). More specifically, the doctrine of qualified immunity provides a complete defense where
“either (a) it was objectively reasonable for the officer to believe that probable cause existed, or
(b) officers of reasonable competence could disagree on whether the probable cause test was
met.” Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991). But “[w]here, as here,
there are facts in dispute that are material to a determination of reasonableness, summary
judgment on qualified immunity grounds is not appropriate.” McKelvie v. Cooper, 190 F.3d 58,
63 (2d Cir. 1999); see also, e.g., Weyant, 101 F.3d at 858 (holding that the issue of qualified
immunity could not be resolved as a matter of law because the officers’ version of events was

9

“sharply disputed”); Bradley v. Jusino, 374 F. App’x 144, 146-47 (2d Cir. 2010) (holding that
summary judgment on a false arrest claim was not appropriate where facts are disputed and the
plaintiff’s version of facts does not support a finding of probable cause or arguable probable
cause); Rogers v. City of Amsterdam, 303 F.3d 155, 160 (2d Cir. 2002) (reversing a district
court’s grant of qualified immunity on a false arrest claim where “[t]he information available to
[the officer] indicated that [the plaintiff] was nothing more than an interested bystander,” even
though the officer arguably had probable cause to arrest others). 3
B. Plaintiffs’ Other Claims
For the foregoing reasons, Plaintiffs’ core claim — for false arrest — survives
Defendants’ motion for summary judgment. By contrast, Defendants are entitled to summary
judgment on Plaintiffs’ other claims, for failure to intervene and violations of Plaintiffs’ rights
under the First, Fourth, Sixth, and Fourteenth Amendments. 4 First, Plaintiffs’ failure-tointervene claims fail because they allege that all Defendants were direct participants in the
alleged wrongful acts. See, e.g., Sanabria v. Detective Shawn Tezlof, No. 11-CV-6578 (NSR),
2016 WL 4371750, at *5 (S.D.N.Y. Aug. 12, 2016) (“Where the officer is a direct participant in

3

Defendants argue that Plaintiffs’ false arrest claims against Lieutenant Scheublin should
be dismissed for lack of personal involvement. (Defs.’ Reply Mem. 10). There is evidence,
however, that Lieutenant Scheublin was personally and directly involved in the decision to arrest
and charge Plaintiffs. (See Mindrutiu Decl., Ex. B, at 20-21 (“Collectively [Sergeant Gillis,
Officer Espinal, and Lieutenant Scheublin] made th[e] decision [to take the Plaintiffs to the
precinct and charge them with crimes.]”)). Accordingly, the argument is without merit. Cf., e.g.,
Nunez v. City of N.Y., No. 14-CV-4182 (RJS), 2016 WL 1322448, at *6 (S.D.N.Y. Mar. 31,
2016) (finding a lack of personal involvement for a defendant where the plaintiffs “fail[ed] to
plead any facts suggesting that she was personally involved in the decision to arrest Plaintiff or
to detain him pre-arraignment”); Humbach v. Canon, No. 13-CV-2512 (NSR), 2014 WL
6057703, at *4 (S.D.N.Y. Nov. 12, 2014) (same).
4

In addition, Plaintiffs explicitly abandon their municipal liability claims against the City.
(Pls.’ Opp’n 11).

10

the allegedly unlawful conduct, the failure to intervene theory of liability is inapplicable.”).
Second, Plaintiffs’ First Amendment claims fail because they proffer no evidence suggesting that
any Defendant’s actions “were motivated or substantially caused” by their exercise of their First
Amendment rights. Curley v. Vill. of Suffern, 268 F.3d 65, 73 (2d Cir. 2001). Third, although
Plaintiffs allege a violation of their Fourth Amendment rights separate and apart from their
claims for false arrest, they present no facts in support of those claims; thus, they are dismissed
both for lack of evidence and as duplicative of their false arrest claims. 5 Similarly, Plaintiffs’
Fourteenth Amendment procedural due process claims are subject to dismissal because they are
duplicative of their false arrest claims. See, e.g., Hickey v. City of N.Y., No. 01-CV-6506 (GEL),
2004 WL 2724079, at *19 (S.D.N.Y. Nov. 29, 2004) (dismissing the plaintiffs’ procedural due
process claims as duplicative of their claims for false arrest). And finally, although Plaintiffs
allege violations of their Sixth Amendment rights in their complaint, they have no plausible
claims given that they were not prosecuted. (Second Am. Compl. ¶¶ 30, 36). See, e.g., Brewer
v. Williams, 430 U.S. 387, 398-99 (1977) (holding that the Sixth Amendment right to counsel
attaches “at or after the time that judicial proceedings have been initiated against him whether by

5

Plaintiff Francois also alleges in the Second Amended Complaint that Officer Espinal
“repeatedly stopped [him] . . . and unlawfully detained, questioned and searched him.” (Docket
No. 155 (“Second Am. Compl.”) ¶ 31). But he alleges no other facts about these stops and no
evidence concerning these stops appears to be in the record. To the extent that the conclusory
allegation can nonetheless be construed as an independent Fourth Amendment claim, it fails as a
matter of law, as a plaintiff must allege facts showing “more than a sheer possibility that a
defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Additionally,
Francois waives any such Fourth Amendment claim because he fails to respond to Defendants’
arguments for summary judgment on the matter. See Jackson v. Fed. Exp., 766 F.3d 189, 198
(2d Cir. 2014) (“[A] court may, when appropriate, infer from a party’s partial opposition [to a
motion for summary judgment] that relevant claims or defenses that are not defended have been
abandoned.”).

11

way of formal charge, preliminary hearing, indictment, information, or arraignment”) (internal
quotation marks omitted).
THE MOTION TO PRECLUDE
Next, Defendants move to preclude Francois from calling Dr. Robert Lloyd Goldstein as
an expert witness on the ground that he disclosed Dr. Goldstein in an untimely manner. (Defs.’
Mem. 17-21). Under Rule 26(a)(2)(D) of the Federal Rules of Civil Procedure, a party must
disclose the identity of any expert witness “at the times and in the sequence that the court
orders.” A party who fails to comply with that requirement may not call the witness at trial
unless the failure “was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). When
determining whether to preclude evidence under those Rules, a court must consider four factors:
“(1) the party’s explanation for the failure to comply with the disclosure requirement; (2) the
importance of the testimony of the precluded witnesses; (3) the prejudice suffered by the
opposing party as a result of having to prepare to meet the new testimony; and (4) the possibility
of a continuance.” Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006).
As a threshold matter, there is no question that Francois’s disclosure was untimely. At
the initial pretrial conference held on July 27, 2015, the parties indicated that they did not intend
to rely on experts during the course of the litigation. (Docket No. 79). Consistent with its
standard practice, the Court struck from its model Case Management Plan and Scheduling Order
the paragraph providing for expert discovery and advised the parties that if they came to believe
expert discovery was appropriate they had to file a letter motion to that effect prior to the close of
discovery. (See id.). Francois did not file such a letter motion. Instead, only one day before the
close of discovery, he disclosed to Defendants an expert report in which Dr. Goldstein opined
that Francois suffered from post-traumatic stress disorder as a result of his arrest and would

12

require treatment and medication. (Def. Mem. 19-20). Making matters worse, that disclosure
came after Plaintiffs’ counsel’s repeated representations to the Court and Defendants that
Plaintiffs had not sought medical treatment and were not claiming injuries as a result of their
arrests.
Nor can the Court find that Francois’s failure “was substantially justified or is harmless.”
Fed. R. Civ. P. 37(c)(1). The first factor the Court must consider — the party’s explanation for
the failure to comply with the disclosure requirement — cuts heavily against Francois, as he does
not even attempt to proffer a legitimate explanation for his eleventh hour disclosure of Dr.
Goldstein’s report. Further highlighting Francois’s lack of diligence, the discovery deadline was
extended three separate times, and the Court even conducted a discovery conference on January
28, 2016. (Docket Nos. 89, 100, 120). Yet, at no point during this prolonged discovery period
did Plaintiffs’ counsel indicate any intention to conduct expert discovery. Accordingly, the first
factor swings heavily in favor of excluding Dr. Goldstein’s testimony.
The second factor — the importance of the testimony at issue — also cuts in favor of
Defendants. Notably, Francois makes no argument regarding the importance of Dr. Goldstein’s
testimony; instead, he merely recites the substance of the expert’s testimony. (Pls.’ Opp’n 1113). Such a failure is “by itself . . . sufficient to find that this factor weighs against” Francois.
Lebada v. N.Y. City Dep’t of Educ., No. 14-CV-758 (LAK) (GWG), 2016 WL 626059, at *6
(S.D.N.Y. Feb. 8, 2016). Moreover, even if the Court were to assume that Dr. Goldstein’s
testimony was critical to Francois’s case, that would not excuse his late disclosure. Generally,
“the greater the importance of a witness, the more prejudice is suffered by the defendants by not
having had the opportunity to depose that witness, seek documents from him or her, or question
other witnesses about the witnesses’ activities or knowledge.” Id. Additionally, the mere fact

13

that “the evidence may be important is not sufficient to avoid preclusion where no explanation
has been given for the delay.” Id. at 7. Indeed, to hold otherwise “would give parties the
perverse incentive to spring especially large and surprising disclosures on their adversaries on
the eve of trial — an extreme version of the ‘sandbagging’ that Rule 26 attempts to avoid.”
Agence France Presse v. Morel, 293 F.R.D. 682, 687 (S.D.N.Y. 2013).
The last two factors — the prejudice suffered by the opposing party and the possibility of
a continuance — also weigh in favor of preclusion. Francois’s last-minute introduction of an
expert is plainly prejudicial to Defendants as the testimony supports a new set of damages
relating to Francois’ psychological condition on the eve of the close of discovery. Given the
timing of Francois’s disclosure, Defendants did not have an opportunity to depose Dr. Goldstein
or to offer a rebuttal expert. And a continuance is not appropriate at this late date. The arrests
that gave rise to this litigation occurred more than two and one half years ago, the case has been
pending for over two years, the parties were already granted three extensions of the discovery
deadline, and discovery has been closed for more than ten months at this point. All of those facts
counsel against the granting of a potentially lengthy continuance. See Pace v. Air & Liquid Sys.
Corp., 171 F. Supp. 3d 254, 266 (S.D.N.Y. 2016).
In sum, although preclusion is a harsh sanction, see, e.g., Design Strategy, Inc. v. Davis,
469 F.3d 284, 297 (2d Cir. 2006), and a court “must consider less drastic responses” before
ordering preclusion, Outley v. City of New York, 837 F.2d 587, 591 (2d Cir. 1988), the Court
concludes that Francois should not permitted to call Dr. Goldstein as an expert witness in this
case. Accordingly, Defendants’ motion to preclude Dr. Goldstein is granted. 6

6

Dr. Goldstein’s testimony is subject to exclusion for an additional reason. Local Civil
Rule 83.10, which applies to this case, required Francois to serve medical releases on the City if
he was claiming any physical or mental injuries beyond “garden variety” injuries. The Rule
14

THE SANCTIONS MOTION
Finally, Defendants move for sanctions against Simon based on his failure to preserve
video footage that he had recorded with his cellphone on the night of the arrests. (Defs.’ Mem.
22-24). As Defendants do not contend that Simon acted with intent to deprive them of the video
footage, their motion is governed by Rule 37(e)(1), which provides, that the Court, “upon finding
prejudice to another party from loss of the information, may order measures no greater than
necessary to cure the prejudice.” Fed. R. Civ. P. 37(e)(1) (as amended December 1, 2015). 7
Applying that Rule here, Defendants’ motion fails because they do not show that they
suffered any prejudice as a result of the lost footage. Defendants assert that the lost video “was
the best evidence of the presence and location of [Rochester’s] gun, as well as critical events that
led to plaintiffs’ arrest.” (Defs.’ Mem. 22). But that assertion is pure speculation; Defendants
do not actually know what (if anything) was filmed by Simon, let alone whether it would have

provides that failure to serve such releases “will constitute a waiver of plaintiff’s claims for
compensation for that physical or mental injury.” Francois did not serve any medical releases on
the City in this case, so he may not now seek damages for the alleged mental injuries described
in Dr. Goldstein’s report. See, e.g., Salazar v. City of N.Y., No. 15-CV-1989 (KBF), Docket No.
58 (S.D.N.Y. Mar. 18, 2016) (order precluding the plaintiff from asserting damages based on
medical treatment that she may have received because she had failed to file any medical releases
pursuant to Local Civil Rule 83.10). In light of that, Dr. Goldstein’s testimony is irrelevant. See
Fed. R. Evid. 401-402.
7

In his order transmitting the proposed amendment of Rule 37(e) to Congress, Chief
Justice John G. Roberts stated that “the foregoing amendments to the Federal Rules of Civil
Procedure shall take effect on December 1, 2015, and shall govern in all proceedings in civil
cases thereafter commenced and, insofar as just and practicable, all proceedings then pending.”
CAT3, LLC v. Black Lineage, Inc., 164 F. Supp. 3d 488, 495-96 (S.D.N.Y. 2016) (quoting 2015
U.S. Order 0017). Chief Justice Roberts’s order is consistent with Title 28, United States Code,
Section 2074(a), which permits the Supreme Court to apply new rules to pending proceedings,
“except . . . to the extent that, in the opinion of the court in which such proceedings are pending,
the application of such rule in such proceedings would not be feasible or would work injustice, in
which event the former rule applies.” 28 U.S.C. § 2074(a). The Court finds that application of
the new Rule 37(e) here would neither be infeasible nor work injustice and thus applies it to
Defendants’ motion.

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been helpful to their case. Even assuming arguendo that the video did capture the location of
Rochester’s gun, it would be largely irrelevant to the question of whether Defendants had
probable cause to arrest Plaintiffs. That gun was indisputably in the possession of Rochester
when the police arrested him. (Defs.’ SOF ¶¶ 16-17). And Defendants make no serious
allegation that any Plaintiff ever had control of Rochester’s weapon, as required by New York’s
possession of a weapon law, or that any Plaintiff aided Rochester in possessing the weapon, as
required under the accessorial liability statute. Having failed to demonstrate any prejudice from
the lost video, Defendants are not entitled to sanctions under Rule 37(e). See, e.g., Mazzei v.
Money Store, No. 15-CV-2054, 2016 WL 3902256, at *2 (2d Cir. July 15, 2016) (summary
order) (finding no prejudice when “[a]ny additional evidence from the [electronic database at
issue] would not have made any difference in this trial”); Best Payphones, Inc. v. City of N.Y.,
No. 1-CV-3924 (JG) (VMS), 2016 WL 792396, at *6 (E.D.N.Y. Feb. 26, 2016) (“The Court
finds that Defendants have not shown prejudice from the loss of any emails that may have
existed between Plaintiff and potential buyers; therefore, no sanctions may be awarded under
Rule 37(e).”).
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is GRANTED in
part and DENIED in part, and all of Plaintiffs’ claims other than their false arrest claims are
dismissed. Additionally, Defendants’ motion to exclude Francois’s expert is GRANTED and
their motion for sanctions against Simon is DENIED.
Per the Case Management Plan and Scheduling Order (Docket No. 79), within thirty
days of this Opinion and Order, the parties shall submit to the Court for its approval a Joint
Pretrial Order prepared in accordance with the Court’s Individual Rules and Practices and Rule

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26(a)(3) of the Federal Rules of Civil Procedure. The parties shall also follow Paragraph 5 of the
Court’s Individual Rules and Practices, which identifies submissions that must be made at or
before the time of the Joint Pretrial Order, including any motions in limine.
If this action is to be tried before a jury, joint requests to charge, joint proposed verdict
forms, and joint proposed voir dire questions shall be filed on or before the Joint Pretrial Order
due date in accordance with the Court’s Individual Rules and Practices. Jury instructions may
not be submitted after the Joint Pretrial Order due date, unless they meet the standard of Rule
51(a)(2)(A) of the Federal Rules of Civil Procedure. If this action is to be tried to the Court,
proposed findings of fact and conclusions of law shall be filed on or before the Joint Pretrial
Order due date in accordance with the Court’s Individual Rules and Practices.
Unless the Court orders otherwise for good cause shown, the parties shall be ready for
trial two weeks after the Joint Pretrial Order is filed.
Finally, if the parties are interested in a settlement conference before the assigned
Magistrate Judge, they shall so advise the Court by joint letter as soon as possible.
The Clerk of Court is directed to terminate Docket No. 158.

SO ORDERED.
Dated: January 5, 2017
New York, New York

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