Deanda v. Hicks (137 F. Supp. 3d 543, 2015)

OPINION & ORDER

KENNETH M. KARAS, District Judge:

Plaintiff Sherrie Deanda (“Plaintiff’ or “Deanda”) brings this. Action pursuant to 42 U.S.C. § 1983 against Defendants Timothy Hicks (“Hicks”), William Thomas (“Thomas”), Angela Caporale (“Caporale”), and Robert Pavone (“Pavone”) (collectively, “Defendants”) in their official and individual capacities as police officers of the Westchester County Police, alleging violations of the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, Article I, Section 6 of the New York State Constitution, ■ and New York State common law, and claiming that Defendants defamed Plaintiff and en’gaged in outrageous conduct, which caused Plaintiff emotional distress. Before the Court is Plaintiffs Spoliation Motion, (Dkt. No. 37), and Defendants’ Motion For Summary Judgment, (Dkt. No. 45). For the following reasons, Plaintiffs Motion id denied, and Defendants’ Motion is granted.

I. Background

A. The Facts

On May 28, 2012, Hicks arrested Dean-da. (Defs.’ Rule 56.1 Statement of Material. Facts (“Defs.’ 56.1”) ¶ 1 (Dkt. No. 48); Decl. of Taryn'A. Chapman-Langrin in Supp. of Mot. For Summ. J. (“Chapman-Langrin Deck”) Ex. N (Aff. of Timothy Hicks (“Hicks Aff.”)) 115 (Dkt. No. 46).) Prior to his employment with the West-chester County Department of Public Safety, ' Hicks took a drug recognition coúrse while he was employed with the Dutchess County Sheriffs office. (Defs.’ 56.1 ¶2; Chapman-Langrin Deck Ex. E (Dep. Tr. of Timothy Hicks (“Hicks Tr.”)) 66-68.) Hicks participated in arrests for controlled substances during his prior employment with the Dutchess County Sheriffs office and his employment with the New York State Park Police. (Defs.’ 56.1 ¶ 3; Hicks Aff. ¶¶ 1, 3.)

On May 28, 2012, Deanda was speeding while she was traveling south on the Bronx River Parkway, near the Vermont Terrace exit. (Defs.’ 56.1 ¶ 4; Chapman-Langrin Deck Ex. A (Sherrie Deanda’s 50-h Tr. (“Deanda 50-h Tr.”) 11.) Hicks observed Deanda speeding and signaled for her to pull her car to the side of the road. (Defs.’ 56.1 ¶ 5; Hicks Aff. ¶ 8.) Two children were seated in the rear seats of Deanda’s vehicle. (Defs.’ 56.1 ¶ 6; Deanda 50-h Tr. 9; Hicks-Aff. ¶- 21.) Hicks approached the vehicle ánd requested to see Plaintiffs license and registration. (Defs.’ 56.1 ¶ 7; Hicks Tr. 85.) Defendants claim that while Deanda was searching in a purse for her license, Hicks observed an unlabeled and transparent pill bottle, in plain view, containing blue pills, which he identified as oxycodone pills. (Defs.’ 56.1 ¶¶8, 10; Hicks Tr. 87-89.) Plaintiff disputes this fact, stating that'“[i]t would not have been possible for ... Hicks to see that the pills were blue simply by looking at the amber colored pill bottle.” (Pl.’s Rule 56.1 Statement (“Pi’s 56.1”) ¶ 8-A; see also id. ¶ 10 (Dkt. No. 50).) Hicks requested that De-anda give hjm the unlabeled pill bottle, and Deanda complied with the request. (Defs.’ 56.1 ¶ 11; Hicks Tr. 89.) Hicks told Dean-da that the pills were oxycodone and De-anda told Hicks the same. (Defs.’ 56.1 ¶¶ 12-13; Hicks Tr. 98; Deanda 507h Tr. 25); PL’s Third Amended Compl. (“TAC”) ¶ 15 (Dkt. No 20).) When Hicks asked Deanda if she had a prescription for the pills, she said that she did not. (Defs.’ 56.1 ¶ 14; Hicks Tr. 89; Chapman-Lang-rin Decl. Ex. K.) Deanda told Hicks that her sister was at her house the night before, that her sister had left the pills there, and that she was on her way to return the pills to her. (Defs’.’ 56.1 ¶ 15; Deanda 50-h Tr. 25-26.) Defendants claim that “Hicks does not recall [Deanda] telling him” this information. (Defs.’ Resp; to PL’s Statement of Undisputed Material Facts (“Defs.’ 56.1 Resp.”) ¶ 15 (Dkt. No. 52); Hicks Aff. ¶ 15.)

Defendants claim that “[b]ased upon his observation of the oxycodone pills in an unlabeled pill bottle in plain view, without a prescription in [Plaintiffs possession, ... Hicks had probable cause to arrest ... [P]laintiff,” and that Hicks “had the authority to seize the unlabeled pill bottle as per the New York Public Health Law, Article 33, Section[ ] 3387(1) and Seetion[ ] 3302[33] .., as [Deanda] was not an ultimate user within the meaning of the statute, nor was her sister a member of her household for whom she was bringing the pills to, as they reside in separate residences!” (Defs.’ 56.1 ¶¶ 16-17.) Plaintiff disputes these claims. (PL’s 56.1 ¶¶ 16-17.)

Hicks went back to his police vehicle, checked Deanda’s license and registration, and returned to Deanda’s vehicle. (Defs.’ 56.1 ¶ 18; Hicks Aff. ¶ 16.) Plaintiff told Hicks that the pills belonged to her sister and that her sister had a valid prescription for the pills. (Defs.’ 56.1 ¶ 19; Chapman-Langrin Deck Ex. D (Dep. Tr. of Sherrie Deanda (“Deanda Tr.”)) 29; Hicks Aff. ¶ 14.) Defendants claim that Deanda told Hicks that the purse belonged to her sister, (Defs.’ 56.1 ¶ 20; Hicks Aff. ¶ 14), a claim that Plaintiff denies, (Pi’s. 56.1 ¶ 20; Deanda Tr. 22). Hicks decided to arrest Deanda within five minutes of speaking to her, based upon the fact that she did not have a prescription for the pills and that they were contained in an unlabeled pill bottle. (Defs.’ 56.1 ¶ 21; Hicks Aff. ¶ 13.) Hicks called for back-up assistance because “he had a female arrestee.” (Defs.’ 56.1 ¶ 22; Hicks Aff. ¶ 16.) Hicks asked Deanda to exit her vehicle, and he placed her in the back' of his police vehicle. (Defs.’ 56.1 ¶22; Hicks Aff. ¶ 17.)

Caporale arrived on the scene, patted down Deanda’s person for weapons, and placed Hicks’s handcuffs on Deanda, who was then again placed in the backseat of Hicks’s police vehicle. (Defs.’ 56.1 ¶23; Chapman-Langrin Deck. Ex. O (Aff. of Angela Caporale (“Caporale Aff.”)) ¶ 15.) Caporale did not have any substantive conversation with Deanda while she was at the scene. (Defs.’ 56.1 ¶ 24; Caporale Aff. ¶ 14.) Deanda gave her cell phone to Hicks, and Hicks had a telephone conversation with Deanda’s sister, Paula Fontan-ette (“Fontanette”), to discuss ,who would pick up the children that were in the back seat of Deanda’s vehicle. (Defs.’ ¶¶ 25-26; Deanda 50-h Tr. 37; Hicks Aff. ¶ 22.) Plaintiff claims that during that conversation Fontanette told Hicks that the pills belonged to her, that she had a prescription for the pills, that she had left them at Plaintiff’s home the night before, and that Plaintiff was bringing the pills ¡back to her. (Pi’s. 56.1 ¶ 25-a; Chapman-Langrin Decl. Ex. I. (Dep. Tr. of Paula Fontanette (“Fontanette Tr.”)) 23, 27.) Defendants deny that Fontanette relayed this information. (Defs.’ 56.1 Resp. ¶ 25-A;. Hicks Aff. ¶¶ 23-24.) At the end of the conversation, it had not been determined who was picking up the children, and Hicks terminated the telephone call. (Defs.’ 56.1 ¶ 27; Hicks Aff. ¶ 22; Fontanette Tr. 16,. 18-190 The children were placed in the back seat of Caporale’s vehicle, and the doors of the vehicle were locked. (Defs.’ 56.1 ¶ 28; Ca-porale Aff. ¶ 16.)

Hicks and Caporale performed an inventory search of' Deanda’s vehicle, which yielded nine loose oxycodone pills in the driver’s side door panel, one oxycodone pill on the floor in the vicinity of the driver’s seat, and 13/6 Tramadol pills in the center console. (Defs.’ 56.1 ¶ 29; Hicks Aff. ¶ 26; Hicks Tr. 93; Chapman-Langrin Decl. Ex. S.) The total number of pills contained in the unlabeled pill bottle was 40 oxycodone pills, for a total of 50 oxycodone pills in the vehicle. (Defs.’ 56.1 ¶ 29; Hicks Aff. ¶ 26; Hicks Tr. 93; Chapman-Langrin Decl. Ex. S.) The inventory search also revealed a total, of $1266 in cash,. including $100 in one-dollar bills. (Defs.’ 56.1 ¶30;- Hicks Tr.- 92-93.) A tow truck arrived to tow Plaintiffs vehicle from the scene. (Defs.’ 56.1- ¶ 31.) Plaintiff was taken to the police headquarters in Hicks’s vehicle. (Id. ¶32.)- The children were taken to the police headquarters in Caporale’s vehicle, and Caporale manipulated her police vehicle camera to face the rear seat of the vehicle to “show -the children were not being harmed or [were not] otherwise unhappy.” (Id.; Caporale Aff. ¶¶ 18, 32-33.) Because she had two children in her custody-on the way to the police headquarters, Caporale requested that the video from her police vehicle be preserved. (Defs.’ 56.1 ¶ 33;' Caporale Aff. ¶ 34.) '

At police headquarters, Deanda was pro-' cessed and fingerprinted for criminal possession of a controlled substance in the fourth degree,and speeding. (Defs.’ 56.1 ¶ 34; Chapman-Langrin Decl. Ex. K.) Detective Pavone was assigned to Plaintiffs case and assisted Hicks in preparing the case file regarding Plaintiffs arrest. (Defs.’ 56.1 ¶35; Chapman-Langrin .Deck Ex. P (Aff. of Robert Pavone (“Pavone Aff.”)) ¶ 7.), Pavone drafted the felony complaint based on information, he received from Hicks, and Hicks authored the incident report and ,“voucher[ed] the items seized as part of the inventory of [Dean-da’s] vehicle.” (Defs.’ 56.1 ¶ 35; Pavone Aff. ¶ 7.) Deanda declined to give Pavone a statement concerning the circumstances of her arrest. (Defs.’ 56.1 ¶ 36; Pavone Aff. ¶ 26.) •

Plaintiff states that “Hicks did not disclose to ... Pavone that both Plaintiff and her sister told him that the pills belonged to Fontanette, that [Fontanette] had a prescription for the pills, that she had left them at Plaintiffs home the night before[,] ... that Plaintiff was driving' [to] the City to bring them back to her, [and that] Fon-tanette offered to bring the prescription bottle to ‘wherever’ she needed to in order to prove she had the prescription.” (Pl.’s 56.1 ¶ 35-A; Chapman-Langrin Decl. Ex. G (Dep. Tr. of Robert Pavone (“Pavone Tr.”) 31-33.)) Indeed, Defendants admit that “[o]n the date of the incident, ... Hicks never told :.. Caporale, Pavone, or Thomas[,] [who Plaintiff alleges was the desk officer that Fontanette spoke with when she arrived-at police headquarters, (see PL’s TAC ¶ 20], .about his conversation with [Deanda] at the scene where she told him that the pills belonged to her sister, and that her sister had a valid prescription for the pills,” or about Deanda’s “conversation with him at the scene wherein [Dean-da] claims that she told ... Hicks that her sister had left the pills at her house the night before and that she was on her way to bring the pills to her at the time of the arrest.” (Defs.’ 56.1 ¶¶ 37-38; Hicks Aff. ¶ 31; Caporale Aff. ¶ 10; Pavone Aff. ¶¶ 18-19; Chapman-Langrin Deck Ex. Q (Aff. of William Thomas (“Thomas Aff.”)) ¶ 13.) Further, ‘ “‘inasmuch as ... Hicks does not recall receiving additional information from [Fontanette] over the phone, he never told ... Caporale, Pavone, or Thomas about his telephone conversation with [Fontanette].” ■ '(Defs.’ 56.1 ¶ 39; Hicks Aff. ¶ 32; Caporale Aff. ¶ 11; Pa-vone Aff. ¶ 20; Thomas Aff. ¶ 14.) Hicks denies that Fontanette told him that she would bring her identification and prescription information to the scene or to the police headquarters. (Defs.’ 56.1 ¶ 39; Hicks Aff. 1Í 23.) Pavone had no information regarding Hicks’s conversation with Plaintiff at the scene of the incident or Hicks’s telephone conversation with Fon-tanette prior to his preparation of the felony complaint. (Defs.’ 56.1 ¶40; Pavone Aff. ¶¶ 19-20.) Thomas did not have information regarding these conversations either. (Defs.’‘ 56.1 ¶ 41; Thomas Aff. ¶¶ 13-14.) •

On the date of the incident, Fontanette arrived at the police headquarters with Monique Sutton (“Sutton”) to pick up the children.' (Defs.’ 56.1 ¶ 42; Fontanette Tr. 33-34.) Plaintiff claims that Fontanette told a police officer through the glass partition that she had the prescription bottle with her to prove that the pills belonged to her, but that the officer was not interested. (PL’s 56.1 ¶ 42—A; Fontanette Tr. 34-36.) Although Plaintiff alleges in her Third Amended Complaint that Thomas was the officer at the desk, (TAC ¶ 20), Fontanette testified that she cannot identify with certainty the officer that she allegedly spoke with at the police headquarters, (Defs.’ 56.1 ¶ 47; Fontanette Tr. 34-35). Specifically, Fontanette does not recall-asking for a name-of the officer, did not address any officer in particular at the window of the police headquarters, and is unable to describe the officer to whom she requested to speak with Hicks and to provide her prescription bottle and identification. (Defs.’ 56.1 ¶ 47; Fontanette Tr. 34-35.) Fontanette testified that she remembered speaking to two officers, one male and one female. (Fontanette Tr. 34.) On the date of the incident, there were two other desk officers on duty with Thomas during the same time period that he was assigned as desk officer, and at various times during the day, other officers were also at the three desks behind the window at the headquarters. (Defs.’ 56.1 ¶48; Thomas Aff. ¶¶ 7-8.) Thomas does not recall having a conversation with Fontanette. (Defs.’56.1 ¶ 46; Thomas Aff. ¶ 21.) Ca-porale released the two children to Fon-tanette and Sutton, but did not have a conversation with Fontanette. (Defs.’ 56.1 ¶ 43; Caporale Aff. ¶ 23.) Neither Hicks nor Pavone had a conversation with Fon-tanette. (Defs.’ 56.1 ¶¶ 44-45; Hicks Aff. ¶ 30; Pavone Aff. ¶ 31.) Neither Caporale, Pavone, nor Thomas was advised by any other officer that Fontanette wanted to show them her identification and her prescription bottle while she was at the police headquarters. (Defs.’ 56.1 IT 49; Caporale Aff. ¶ 25; Pavone Aff. ¶ 32; Thomas Aff. ¶ 22.)

Caporale took Deanda to the “White Plains Court for her arraignment[,] ... and [Deanda] was subsequently taken to the Westchester County Jail.” (Defs.’ 56.1 ¶ 51; Caporale Aff. ¶¶ 26-28.) On June 25, 2012, at the request of the district attorney, Fontanette authored a sworn written statement at the police headquarters regarding the circumstances of Dean-da’s arrest and her ownership of the oxy-codone pills. (Defs.’ 56.1 IF 52; Chapman-Langrin Deck Ex. L.) Police Officer Gras-so took photographs of Fontanetté’s prescription pill bottle containing the oxyco-done pills and Deanda’s prescription for the Tramadol pills at the headquarters. (Defs.’ 56.1 ¶ 52; Chapman-Langrin Deck Ex. U.) On July 26, 2012, the Westchester County District Attorney withdrew the criminal case against Plaintiff, after receiving the information from Fontanette and from Deanda’s attorney regarding, among other things, the identity of the pharmacist that dispensed the oxycodone pills to Fon-tanette. (Defs.’ 56.1 ¶ 53.)

B. Procedural History

Plaintiff filed the initial Complaint on February 22, 2013. ‘ (Dkt.' No. 1.) Plaintiff filed a First Amended Complaint on July 11, 2013, (Dkt. No. 10), a Second Amended Complaint on November 20, 2013, (Dkt. No. 16), and a Third Amended Complaint (“TAC”) on January 6, 2014, (Dkt. No. 20). The TAC includes several claims based on the stop of Deanda’s vehicle, Deanda’s arrest, and the events thereafter. Specifically, Count One alleges violations of the Fourth and Fourteenth Amendments; Count Two alleges that Defendants maliciously prosecuted Deanda in violation of the Fifth, Sixth, and Fourteenth Amendments, Article' I, Section 6 of the New York State Constitution, and New York common law; Count Three alleges that Defendants violated Plaintiffs rights to be free from abuse of- process under state and federal law; Count Four alleges that Defendants violated Plaintiffs federal and state due process rights; Count Five alleges that Defendants conspired to deprive Plaintiff of her rights under the Fifth, Sixth, and Fourteenth Amendments; Count Six alleges that Defendants published defamatory and false statements regarding Plaintiff; and Count Seven alleges Defendants engaged in shocking and outrageous conduct that caused Plaintiff emotional distress. (Id. ¶¶ 52-85.) Defendants filed an Answer to the TAC on February 7, 2014. (Dkt. No. 21.)

Pursuant to a Scheduling Order dated June 16, 2014, (Dkt. No. 32), and subsequent extensions of time, Plaintiff filed her Spoliation Motion and. accompanying papers on October 10, 2014, (Dkt.Nos.37, 38, 40, 42), and Defendants filed their opposition papers to the Spoliation Motion on the same day, (Dkt.Nos.39, 41). Defendants filed their Motion For Summary Judgment and accompanying papers on October 17, 2014, (Dkt.Nos.45-48, 51-53), and Plaintiff filed her opposition papers the same day, (Dkt.Nos.49-50). On July '29, 2015, the Court issued an Order providing Plaintiff with an opportunity, pursuant to Federal Rule of Civil Procedure 56(e), to point to evidence supporting the claim in her Local Rule 56.1 Statement that Hicks could not see the color of the pills because the pill bottle was amber and not transparent. (Order (Dkt. No. 56).) Plaintiff responded to the Court’s July 29, 2015 Order by letter dated August 6, 2015, (Dkt. No. 58), and Defendants filed a response by letter dated August 12, 2015, (Dkt. No. 61). On August 25, 2015, the Court issued an Order requesting supplemental briefing from both Parties on Plaintiffs claims for defamation and intentional infliction of.emotional distress. (Dkt. No. 62.) Accordingly, Plaintiff filed a relevant letter dated September 2, 2015, (Dkt. No. 63), and Defendants filed a supplemental brief on the same day, (Dkt. No. 64).

II. Discussion

A. Spoliation Motion

1. Applicable Law

Spoliation is defined as “the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 107 (2d Cir.2001) (internal quotation marks omitted); see also West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir.1999) (same). “The spoliation of evidence germane ‘to proof of an issue at trial can' support an inference that the evidence would have been unfavorable to the party responsible for its destruction.’” Byrnie, 243 F.3d at 107 (quoting Kronisch v. United States, 150 F.3d 112, 126 (2d Cir.1998)). Sanctions for spoliation of evidence serve to “(1) deter[]'parties from destroying evidence; (2) plac[e] tbe risk of an erroneous evaluation of the content of the destroyed evidence on the party responsible for its destruction; and (3) restor[e] the party harmed by the loss of evidence helpful to its case to where the party would have been in the absence of spoliation.” Id. (internal quotation marks omitted). “[Determining the proper sanction to impose for spoliation is ‘confined to the sound discretion of the trial judge ... and is assessed on a case-by-case basis.’ ” Adorno v. Port Auth., 258 F.R.D. 217, 227 (S.D.N.Y.2009) (quoting Fujitsu Ltd. v. Fed. Exp. Corp., 247 F.3d 423, 436 (2d Cir.2001)).

“[A], party seeking- an adverse inference instruction based on the destruction of evidence must establish (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that .the records were destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to'the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.” Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 108 (2d Cir.2002) (internal quotation marks omitted); see also Curcio v. Roosevelt Union Free Sch. Dist., 283 F.R.D. 102, 107 (E.D.N.Y.2012) (same). As to the first element, an obligation to preserve the evidence at the time it was destroyed “usually arises when a party has notice that the evidence is relevant to litigation ... but also on occasion in other circumstances, as for example when the party should have known that the evidence may be relevant to future litigation.” Byrnie, 243 F.3d at 107 (internal quotation marks omitted); see also Kronisch, 150 F.3d at 126 (same). “While a litigant is under no duty to keep or retain every.document in its possession, 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.” Adorno, 258 F.R.D. at 227 (alterations and internal quotation marks omitted). For the purposes of the first prong, “[r]elevant documents are those that a party should reasonably know are, relevant , in the action, reasonably calculated to lead to the discovery of admissible evidence, reasonably likely to be requested during discovery and/or are the subject, of a pending discovery request.” Id. (alterations and internal quotation marks omitted).

As to the second element, “at times [the Second Circuit has] required a party to have--intentionally destroyed evidence; at other times [the Second Circuit has] required action in bad faith; and at other times [the Second Circuit] has allowed an adverse inference based on gross negligence,” and, accordingly, “a case by case approach [is] appropriate” to determine whether an adverse inference is warranted. Byrnie, 243 F.3d at 107-08. It is worth noting, however, that “intentional destruction of documents, in the face of a duty to retain those documents is adequate.” Id. at 109 (holding that ..the fact that the defendant had not “asserted that [its] destruction was merely accidental” was “evidence of intentional destruction sufficient to show a culpable state of mind”).

Finally, as to the third element, “[w]hen evidence is destroyed in bad faith, that fact alone is sufficient to support an inference that the missing evidence would have been favorable to the party seeking sanctions, and therefore relevant.” Treppel v. Biovail Corp., 249 F.R.D. 111, 121 (S.D.N.Y.2008) (citing Residential Funding, 306 F.3d at 109). A finding that a party destroyed the evidence in gross negligence also supports an inference that the evidence would have been relevant. See, e.g., Crawford v. City of New London, No. 11-CV-1371, 2014 WL 2168430, at *4 (D.Conn. May 23, 2014). “By contrast, when the destruction is negligent, relevance must be proven by the party seeking the sanctions.” Id. “[I]n the context of an application for an adverse inference, relevance ‘means something more than sufficiently probative to satisfy Rule 401 of the Federal Rules of Evidence.’ ” Curcio, 283 F.R.D. at 112 (quoting Residential Funding, 306 F.3d at 108-09). Instead, “the moving party must show through extrinsic evidence that the destroyed evidence would have been favorable to [his or her] case.” Id.

2. Application

Plaintiff seeks “an adverse inference jury instruction based upon ... Hicks’[s] failure, to preserve the video/audio recording made from his.patrol car during, his stop, questioning[,]. and arrest of Plaintiff on May 28, 2012.” (PL’s Mem. of Law in Supp. of Mot. For an Adverse Inference Jury Instruction (“PL’s Spoliation Mem.”) 1 (Dkt. No. 40).) During his deposition, Hicks testified ' that his vehicle was equipped' -with a video recorder, that the recorder that was operational at the time of Deanda’s arrest, and that the recorder captured both audio and video of the exchange at the scene of'the stop and arrest. (Hicks Tr. ’8-9; see also Aff, of William I. Aronwald (“Aronwald’Aff.”) ¶6 (Dkt. No. 38) (explaining same).)

Turning to the first element; Plaintiff argues that the duty to‘ preserve the video/audio recording began at the earliest on M'ay 28, 2012, the date of Plaintiffs arrest, and at the latest on July 27, 2012, the date of Plaintiffs Notice of Claim, which indicated’ that Plaintiff was asserting claims against Hicks. (PL’s Spoliation Mem. 2.) Defendants do not dispute these dates. Indeed, Hicks testified that on the date of Plaintiffs arrest he understood that the reason that the video was made was for possible use in connection with any litigation arising from the stop, and arrest. (Hicks Tr. 10.), Moreover,: Hicks testified that-unless someone designates the video/audio recording as evidence, it is automatically- removed from the County Police database six months from the date of the arrest. (Id. at 8-11.)- Accordingly, pursuant to .this policy, the evidence would not have been automatically removed from the database until November 28, 2012, six months after Plaintiffs arrest and four months after Plaintiff filed her Notice of Claim.

Nevertheless it is not clear that Hicks himself had a duty to preserve the evidence. Hicks testified that:

[The video/audio recording] was not saved or requested by the District. Attorney prosecuting the case. As per my general orders, I’m not required to save said video. After six months the video is then removed from our database and no longer available because it was not requested.

(Id. at 9; see also id. at 18 (“I’m not required by my general orders to save such video”).) While Hicks acknowledged that it was his understanding that the reason the video/audio recordings were made is for possible use in connection with any litigation arising from incidents that the recordings captured, (id. at 10), he stated that he did not know if the district attorney or anyone else requested the video/audio recording, (id. at 11). This testimony suggests that the district attorney, not Hicks, had the responsibility to preserve the evidence. It at least suggests that this was Hicks’s perception. Moreover, Plaintiff points to nothing in the record, and the Court has not found anything in Hicks’s testimony, that suggests that Hicks had the video/audio recording in his control when the duty to preserve it arose. Instead, Hicks testified that the video/audio recording would have been “stored in storage for six months” in the “database at headquarters.” (Id. at 11-12.) Courts have held that an adverse inference instruction is not appropriate where the defendants in question did not have “any control over the [relevant] recordings, any duty to maintain them, or were in any way involved in the failure to preserve them.” Grant v. Salius, No. 09-CV-21, 2011 WL 5826041, at *2 (D.Conn. Nov. 18, 2011); see also Holloway v. Dep’t of Corr., No. 11-CV-1290, 2013 WL 628648, at *6 (D.Conn. Feb. 20, 2013) (“[T]he fact that the video tape was not preserved without more is insufficient to establish that any particular defendant had both control over and a duty to preserve the video tape at the time it was destroyed[,] much less a culpable state of mind.”); Field Day, LLC v. County of Suffolk, No. 04-CV-2202, 2010 WL 1286622, at *13 (E.D.N.Y. Mar. 25, 2010) (refusing to give an adverse inference charge where the plaintiffs did not show that the individual defendants, as opposed to the county defendant, actually spoliated evidence); cf. Thomas v. Kelly, 903 F.Supp.2d 237, 259 & n. 10 (S.D.N.Y.2012) (explaining that it was appropriate to hold the individual officer, as well as the city defendant, responsible for “failing to preserve evidence he at one time controlled and had a duty to maintain” when the officer had the evidence “within his control when the duty to preserve it arose,” which was when the plaintiff filed a complaint the next day). It is at the very least unclear, then, that Hicks, as opposed to another person, department, or entity such as the district attorney or Westchester County, had a duty to preserve the video/audio recording. ■

Assuming that Hicks had a duty to preserve the video/audio recording, and thus, turning to the second element, “intentional destruction of [evidence] in the face of a duty to retain th[e] [evidence] is adequate” to support an adverse inference and the fact that a defendant “acted with a culpable state of mind.” Byrnie, 243 F.3d at 109. Plaintiff points to nothing in the record to show that Hicks intended to destroy the video/audio recording, and, therefore, a finding of bad faith is not warranted. While “[s]ome courts have categorically held that ‘the failure to implement a litigation hold at the outset of litigation amounts to gross negligence,’ ” Curcio, 283 F.R.D. at 111 (quoting Toussie v. County of Suffolk, No. 01-CV-6716, 2007 WL 4565160, at *8 (E.D.N.Y. Dec. 21, 2007)), the Second Circuit has made clear that “a failure to institute a litigation hold [does not] constitute[] gross negligence per se,” Chin v. Port Auth., 685 F.3d 135, 162 (2d Cir.2012) (internal quotation marks .omitted). This is especially the case “[i]n the context of a motion brought solely against ... an individual, not a municipality.” Curcio, 283 F.R.D. at 111. Accordingly, any fault on Hicks’s part that the video/audio recording was not preserved was negligent, or at most, grossly negligent.

Nonetheless, under the third element, Plaintiffs request for an adverse inference is not warranted. “[T]o obtain an adverse inference instruction, a party must establish that the unavailable evidence is ‘relevant’ to its claims or defenses.” Residential Funding, 306 F.3d at 108. Again, “‘relevant’ in this context means something more than sufficiently probative to satisfy Rule 401 of the Federal Rules of Evidence,” and, instead, “the party seeking the adverse inference must adduce sufficient evidence from which a reasonable trier of fact could infer that the destroyed or unavailable evidence would have been of the nature alleged by the party affected by its destruction.” Id. at 109 (alterations and internal quotation marks omitted). The Court emphasizes that in this context, it must “take care not to hold [Plaintiff] to too strict a standard of proof regarding the likely contents of the destroyed or unavailable evidence because doing so would subvert the purposes of the adverse inference and would allow parties who have destroyed evidence to profit from that destruction.” Id. (alterations and internal quotation marks omitted). Further, “[w]here a party destroys evidence in bad faith, that bad faith alone is sufficient circumstantial evidence from which a reasonable trier of'fact could conclude that the missing evidence was unfavorable to that party.” Id. Indeed, where a defendant has acted willfully in'failing to preserve evidence, a plaintiff “need not show that the evidence it seeks is likely relevant to its claim.” Chevron Corp. v. Donziger, 296 F.R.D. 168, 223 (S.D.N.Y.2013); see also Curcio, 283 F.R.D. at 112 (“In certain limited circumstances, relevance may be inferred if the spoliator is shown to have a sufficiently culpable state of mind.” (internal quotation marks omitted)). Nevertheless, a finding of gross negligence—the willful intent that the Court assumes Hicks had here—does not require an adverse inference. See Chin, 685 F.3d at 162 (“[A] finding of gross negligence merely permits, rather than requires, a district court to give an adverse inference instruction.”); Residential Funding, 306 F.3d at 108 (explaining that “where a party seeking an adverse inference adduces evidence that its opponent destroyed potential evidence (or otherwise rendered it unavailable) in bad faith or through gross negligence (satisfying the culpable state of mind factor), that same evidence of the opponent’s state of mind will frequently also be sufficient to permit a jury to conclude that the missing evidence is favorable to, the party (satisfying the ‘relevance’ factor)” (emphasis added) (some internal quotation marks omitted)); Hawley v. Mphasis Corp., 302 F.R.D. 37, 48 (S.D.N.Y.2014) (“While prejudice may be presumed upon a . showing of bad faith or gross negligence, it is a rebuttable presumption, and the spoliating party has an opportunity to demonstrate a lack of prejudice by, for. example, demonstrating that the innocent party had access to the evidence alleged to have been destroyed or that the evidence would not support the innocent party’s claims or defenses.”); Mastr Adjustable Rate Mortg. Tr. 2006-0A2 v. UBS Real Estate Secs. Inc., 295 F.R.D. 77, 87 (S.D.N.Y.2013) (same).

Here, Defendants argue that the video/audio recording lacks relevance to Plaintiffs claims. Specifically, Defendants contend that the video/audio recording would “not assist [P]laintiff in establishing that she was in lawful possession of the oxycodone pills at the time of the arrest [,]____show that she possessed a prescription for the pills, or even that she possessed a prescription bearing her sister as the owner of the pills[,]..,. show that [Hicks] took the pills from her, put them in an unmarked container [,] and planted them on her[,] ..., [or] show that she did not possess the oxycodone pills in an unlabeled pill container.” (Reply Mem. of Law in Supp. of Defs.’, Summ. J. and Mem. of Law in Opp’n to PL’s Mot. For an Adverse Inference (“Defs.’ Reply”) 8 (Dkt. No. 51).) Plaintiff argues, in turn, that the video/audio recording is “the best evidence of the conversation between Hicks and Plaintiff,” (Aronwald Aff. ¶ 6), and would settle or at the very least shed light on a key dispute between the Parties concerning whether Hicks had probable cause to arrest Plaintiff. In particular, Plaintiff explains that “[although Hicks acknowledges that [Plaintiff] told him that the pills belonged to her sister for which she had a prescription, he denies [that] she told him that Fontanette left- them [at] her home the night before and she was driving to the City to return them to her.” (Id. ¶4; compare PL’s 56.1 ¶ 15 (stating that Plaintiff told Hicks that her sister was at the house the night before, that her sister had left the pills there,-and that she'was on her way to return the pills to her) with Defs.’ 56.1 Resp. ¶ 15 (claiming that Hicks does not recall Plaintiff telling him this information).)

The Court agrees with Plaintiff that the video/audio recording might have been the best evidence of the conversations ‘ that occurred between Hicks and Plaintiff and between Hicks . and Fontanette. Nevertheless, for the reasons explained below, Defendants are correct that what is allegedly captured on the video/audio recording from Plaintiffs perspective is not relevant to Plaintiffs claims and that -its contents would not have ultimately been helpful to Plaintiffs, case. In other words, even accepting Plaintiffs version of events as true, which Plaintiff argues would have been captured by the video/audio recording, the conversations that Plaintiff contends occurred do not affect the analysis of the claims here, as explained below. Thus, the adverse inference would not “plac[e] the risk of an erroneous evaluation of the content of the destroyed evidence on the party responsible for its destruction” or “restor[e] [Plaintiff] ... to where [she] would have been in the absence of spoliation,” Byrnie, 243 F.3d at 107, because the Court assumes, for the purpose of deciding the Motion, the accuracy of Plaintiffs version- of events. Accordingly, no adverse inference is warranted. See Simoes v. Target Corp., No. 11-CV-2032, 2013 WL 2948083, at *7 (E.D.N.Y. June 14, 2013) (explaining that because it was not clear how the surveillance video would have been favorable to the plaintiffs negligence claim in light of “the record evidence identified by [the] plaintiff,” the “relevance element” was not satisfied, and, therefore, the plaintiffs request for an adverse inference failed); Port Auth. Police Asian Jade Soc. of N.Y. & N.J. Inc. v. Port Auth., 601 F.Supp.2d 566, 570-71 (S.D.N.Y.2009) (“Because an adverse inference instruction is not required to restore the plaintiffs to the position they would occupy but for the spoliation, an adverse inference instruction is not warranted.”); Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212, 222 (S.D.N.Y.2003) (“In sum, although [the defendant] had a duty to preserve all of the backup tapes at issue, and destroyed them with the requisite culpability, [the plaintiff] cannot demonstrate that the lost evidence would have supported her claims. Under the circumstances, it would be inappropriate to give an adverse inference instruction to the jury.”).

In any event, even if the Court were to grant the adverse inference, “an adverse inference alone would not preclude granting summary judgment to the defendants in this case.” Valenti v. Penn. Mut. Life Ins. Co., 850 F.Supp.2d 445, 453 (S.D.N.Y.2012); see also Bank of Am., N.A. v. Fischer, 927 F.Supp.2d 15, 26 (E.D.N.Y.2013) (same). “In borderline cases, an inference of spoliation, in combination with some (not insubstantial) evidence for the plaintiffs cause of action, can allow the plaintiff to survive summary judgment.” Byrnie, 243 F.3d at 107 (internal quotation marks omitted). Here, however, even taking Plaintiffs account of the exchange between herself and Hicks and between Hicks and her sister as true, which the Court does below in resolving the Motion for Summary Judgment, there is no evidence in the record that warrants denying Defendants’ Motion, as explained below. See Valenti, 850 F.Supp.2d at 454 (explaining that an adverse inference would not preclude granting summary judgment because there was an absence of some other “not insubstantial evidence of a triable issue of fact” (internal quotation marks omitted)). In other words, even if the Court granted Plaintiffs Motion for Spoliation and imposed an adverse inference sanction, such a sanction would not alter the outcome of the Summary Judgment Motion.

B. Summary Judgment Motion

1. Standard of Review

Summary judgment shall be granted where 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.” Fed.R.Civ,P. 56(a); see also Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 123-24 (2d Cir.2014) (same). “In determining whether summary judgment is appropriate,” a court must “construe the facts in the light most favorable to the non-moving party and ... resolve all ambiguities and draw all reasonable inferences against the movant.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir.2011) (internal quotation marks omitted); see also Borough of Upper Saddle River v. Rockland Cty. Sewer Dist. No. 1, 16 F.Supp.3d 294, 314 (S.D.N.Y.2014) (same). Additionally, “[i]t is the movant’s burden to show that no genuine factual dispute exists.” Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004); see also Aurora Comm. Corp. v. Approved Funding Corp., No. 13-CV-230, 2014 WL 1386633, at *2 (S.D.N.Y. Apr. 9, 2014) (same). “However, when the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant’s claim,” in which case “the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to. avoid summary judgment.” CILP Assocs., L.P. v. PriceWaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir.2013) (alterations and internal quotation marks omitted). Further, “[t]o survive a [summary judgment] motion ..., [a nonmovant] need[s], to create more than a ‘metaphysical’ possibility that his allegations were correct; he need[s] to ‘come forward with specific facts showing that 'there is a genuine issue for trial,’ ” Wrobel v. County of Erie, 692 F.3d 22, 30 (2d Cir.2012) (emphasis omitted) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)), and “cannot rely oh the mere allegations or denials contained in the pleadings,” Walker v. City of New York, No. 11-CV-2941, 2014 WL 1244778, at *5 (S.D.N.Y. Mar. 26, 2014) (internal quotation marks omitted) (citing, inter alia, Wright v. Goord, 554 F.3d 255, 266 (2d Cir.2009) (“When a motion for summary judgment is properly supported by documents or other evidentiary materials, the party opposing summary judgment may not merely rest on the allegations or denials of his pleading. .. .”)).

“On a motion for summary judgment, a fact is material if it might affect the outcome of the suit under the governing lav?.” Royal Crown Day Care LLC v. Dep’t of Health & Mental Hygiene, 746 F.3d 538, 544 (2d Cir.2014) (internal quotation marks omitted). At summary judgment, “[t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried.” Brod, 653 F.3d at 164 (internal quotation marks omitted); see also In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., MDL No. 1358, No. M21-88, 2014 WL 840955, at *2 (S.D.N.Y. Mar. 3, 2014) (same). Thus, a court’s goal should be “ ‘to isolate and dispose of factually 'unsupported claims.’” Geneva Pharm. Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 495 (2d Cir.2004) (quoting Celotex Corp. v. Ca-trett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); see also Schatzki v. Weiser Capital Mgmt., LLC, No. 10-CV-4685, 2013 WL 6189465, at *14 (S.D.N.Y. Nov. 26, 2013) (same).

2. Defendants Caporale, Pavone, and Thomas

Plaintiff concedes that, “[bjased upon the pre-trial discovery, notably the depositions of the parties and non-party witness Paula Fontanette, Plaintiff has no objection to summary judgment in favor of Defendants Angela Caporale, Robert Pavone, and William Thomas.” (Pl.’s Mem. of Law in Opp’n to Defs.’ Mot. For Summ. J. (“PL’s Mem.”) 1 (Dkt. No. 49).) Accordingly, the Court grants Defendants’ Motion for Summary Judgment as to these Defendants. See Torres-Sylvan v. Am. Civil Liberties Union, No. 01-CV-343, 2005 WL 1719788, at *1 n. 1 (S.D.N.Y. July 22, 2005) (dismissing the plaintiffs claims for intentional infliction of emotional distress-where the plaintiff conceded in her opposition to summary judgment that the claim should be' dismissed); Valdez v. MGS Realty & Mgmt. Corp., No. 96-CV-5122, 2000 WL 511024, at *2 (S.D.N.Y. Apr. 28, 2000) (granting the defendant’s motion for summary judgment with respect to claims that the plaintiffs conceded in their opposition papers that they were not able to prove).

3. Qualified Immunity

Hicks invokes qualified immunity as to all of Plaintiffs claims. “The doctrine of qualified immunity protects government officials from suit if their conduct does not violate clearly established statutory or- constitutional rights of which a reasonable person would have known.” Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d Cir.2013) (internal quotation marks omitted); see also Lee v. McCue, No. 04-CV-6077, 2007 WL 2230100, at *2 (S.D.N.Y. July 25, 2007) (same). “This is a doctrine that seeks to balance the twin facts that civil actions for damages may offer the only realistic avenue for vindication of constitutional guarantees and that such suits nevertheless can entail substantial social costs, including the risk that fear of personal monetary liability arid harassing litigation will unduly inhibit officials in the discharge of their duties.” Jones v. Parmley, 465 F.3d 46, 55 (2d Cir.2006) (internal quotation marks omitted). As to the latter fact, “the Supreme Court has described the ‘central purpose’ of qualified immunity as preventing threats of liability that would be ‘potentially disabling’ to officials.” Amore v. Novarro, 624 F.3d 522, 529-530 (2d Cir.2010) (quoting Elder v. Holloway, 510 U.S. 510, 514, 114 S.Ct. 1019, 127 L.Ed.2d 344 (1994)). Accordingly, the Second Circuit has “developed a standard for determining whether an officer is entitled to qualified immunity that is forgiving and protects all but the plainly incompetent or those who knowingly violate the law.” Id. (internal quotation marks omitted).

To determine whether a defendant is entitled to qualified immunity, á court assesses: “(1) whether a plaintiff has shown facts making out a violation of a constitutional right; (2) if so, whether that right was clearly established; and (3) even if the right was clearly established, whether it was objectively reasonable for the officer to believe the conduct at issue was lawful.” Gonzalez, 728 F.3d at 154 (internal quotation marks omitted). “The objective reasonableness test is met—and the defendant is entitled to immunity—if officers of reasonable competence could disagree on the legality of the defendant’s actions.” Rohman v. N.Y.C. Transit Auth., 215 F.3d 208, 216 (2d Cir.2000) (internal quotation marks omitted). Accordingly, “if the court determines that the only conclusion a rational jury could reach is that reasonable officers would disagree about the legality of the defendant’^ conduct under the circumstances, summary judgment for the officer is appropriate.” Id. (alterations and internal quotation marks omitted). The Court thus turns to the merits of Plaintiffs constitutional claims, analyzing them through the lens of qualified immunity.

a. Unreasonable Search and Seizure

In the First Cause of Action, Plaintiff alleges that Hicks violated her right to be secure in her person against unreasonable searches and seizures under the Fourth and Fourteenth Amendments. (TAC ¶¶ 52-56.) The Fourth Amendment prohibits “unreasonable searches and seizures.” U.S. Const. amend. IV. “The temporary detention of a person when the police have stopped her vehicle, regardless of its brevity or limited ihtrusiveness, constitutes a seizure for Fourth Amendment purposes, and thus must not be unreasonable.” Gilles v. Repicky, 511 F.3d 239, 244-45 (2d Cir.2007); see also Diamondstone v. Macaluso, 148 F.3d 113, 123 (2d Cir.1998) (same); United States v. Scopo, 19 F.3d 777, 781 (2d Cir.1994) (“An ordinary traffic stop constitutes a limited seizure within the meaning of the Fourth and Fourteenth Amendments.” (internal quotation marks omitted)). “Accordingly, such stops must be justified by probable cause or a reasonable suspicion based on specific and articulable facts of. unlawful conduct.” Id. (internal quotation marks omitted).

“Traffic stops are presumptively reasonable under the Fourth Amendment if the officer has probable cause to believe that a traffic infraction has occurred.” United States v. Foreste, 780 F.3d 518, 523 (2d Cir.2015); see also United States v. Harrell, 268 F.3d 141, 148 (2d Cir.2001) (“As- a general matter, the- decision' to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has- occurred.” (internal quotation marks omitted)); United States v. Dhinsa, 171 F.3d 721, 725 (2d Cir.1999) (explaining that “because ... the officers observed a traffic violation, an objective circumstance [existed] that justifie[d] a traffic stop”); Scopo, 19 F.3d at 781 (holding that “[although [the driver’s] traffic violation, failure to signal while changing lanes[,] ... was minor, the officers, acted within their authority in stopping [the driver] for the violation”).

There is no-dispute that on the date of the stop Hicks observed Deanda speeding on the Bronx River Parkway. (Defs.’ 56.1 ¶¶ 4-5; Pl.’s 56.1 ¶¶4-5.) Accordingly, as Plaintiff concedes, Hicks’s initial stop was reasonable based on his observation, that Deanda was speeding. (See Pl.’s Mem. 7 (“Certainly, Officer Hicks was justified in pulling Plaintiff over once he observed her speeding on the Bronx River Parkway.”).) Nevertheless, Plaintiff contends that the subsequent seizure of the pill bottle was not lawful. (Id. at 12-13.) “In general^ law enforcement officials, pursuant to the [F]ourth [A]mendment,. must obtain a search warrant in order to seize an individual’s property.” Scopo, 19 F.3d at 782. However, “the ‘plainview exception to the [F]ourth [AJmendment warrant requirement authorizes seizure of illegal or evidentiary items visible to a police officer whose access to the object has some prior Fourth Amendment' justification and who has probable cause to suspect that the item is connected with criminal activity.” Id. (some internal quotation marks omitted); see also. United States v. Delva, 13 F.Supp.3d 269, 275 (S.D.N.Y.2014) (“When law enforcement are engaged in otherwise lawful activities ... and see illegal or evi-dentiary items in plain view, .they may seize, them without a warrant.”). Under the plain view .exception to the warrant requirement, “a police officer may seize evidence when in plain view if:, (1) the officer’s initial intrusion was permissible under the [F]ourth [A]mendment; (2) the discovery of the evidence is inadvertent; and (3) the incriminating nature of the evidence found is immediately apparent.” Scopo, 19 F.3d at 782 (internal quotation marks omitted); see also Delva, 13 F.Supp.3d at 275-76 (same). Here, for the reasons explained above, there is no doubt that the first element has been satisfied— Hicks stopped Deanda’s vehicle because of an observed traffic violation. Moreover, Plaintiff does not contest that “the discovery of the [pill bottle was] inadvertent.” Scopo, 19 F.3d at 782. The Parties agree that Hicks observed the pill bottle when Deanda was searching in the purse for her license.

The Parties disagree, however, as to whether the third, element was satisfied—rspecifically, whether the potentially incriminating nature of the pill bottle was readily apparent. “[U]nder the- plain view doctrine, the incriminating nature of an object is generally deemed readily apparent where law enforcement have reason to believe it is or contains evidence of a crime.” Delva, 13 F.Supp.3d at 276 (internal quotation marks omitted). However, “[i]t is not necessary that an officer know with certainty thát an object seized is or contains evidence of a crime at the moment of seizure; it is enough that there be probable cause to associate the object with criminal activity.” Id. In other words, “[f]or an item’s criminal nature to be ‘immediately apparent,’ a reasonable agent must conclude that there is ‘probable cause’ to believe that the item constitutes evidence or fruit of a crime without conducting some further search of the object.” United States v. Echevarria, 692 F.Supp.2d 322, 332 (S.D.N.Y.2010) (quoting United States v. Grubczak, 793 F.2d 458, 461 (2d Cir.1986)), “Whether an object is perceived as evidence or containing evidence of a crime depends on the assessment of the law enforcement officer at the scene.” Delva, 13 F.Supp.3d at 276; see also Echevarria, 692 F.Supp.2d at 332 (same); United States v. Benn, 441 F.Supp. 1268, 1272 (E.D.N.Y.1977) (“The question [of whether an object’s criminality is immediately apparent] must not be decided by the mere subjective views or inarticulate hunches of the police official but by an objective standard.”).

As relevant here, Section 3345 of New York’s Public Health. Law provides that “[e]xcept for the purpose of current use by the person ... for whom such substance was prescribed or dispensed, it shall be unlawful for an ultimate user of controlled substances to possess such substance .outside of the original container in which it was dispensed.” See also Michaels v. City of New York, No. 10-CV-2666, 2011 WL 570125, at *6 n. 2 (S.D.N.Y. Feb. 16, 2011) (“Carrying a controlled substance ... outside of the original container in which it was dispensed violates New York Public Health Law section 3345.”); People v. Fielden, No. 15-NY-022889, 48 Misc.3d 1212(A), 18 N.Y.S.3d 581, 2015 WL 4460568, at *6 (N.Y.Crim.Ct. July 22, 2015) (explaining that “[o]nly the person for whom the substance was prescribed is permitted to possess a ... controlled substance, and the substance must remain in the original container in which it was dispensed” (citing Pub. Health Law § 3345)). Moreover, pursuant to Section 3333, “[n]o controlled substance may be ... dispensed or sold unless it is enclosed within a suitable container, and [a]ffixed to such container is a label upon which” several pieces of identifying information are “indelibly typed, printed, or otherwise legibly written.” Finally, Section 3387 permits any police officer to seize “[a]ny controlled substance ... which has been manufactured, distributed, or dispensed or acquired in violation of th[e] [Public Health Law], or the lawful possession of which cannot be immediately ascertained.”

To begin, .the Court notes that Hicks did not have information that Plaintiff was in unlawful possession of a controlled substance at the time of the traffic stop. Moreover, there were no other manifested facts, other than the observed pill bottle, that suggested Plaintiff was in possession of a controlled substance. Accordingly, this is not a case where an otherwise benign object was or became significant in the context of a permissible search. Cf. Delva, 13 F.Supp.3d at 276 (explaining that “[o]rdinary, everyday objects such as cell phones, laptops, and cameras may take on a different character depending on the context in which they are found”); United States v. Rudaj, 390 F.Supp.2d 395, 403 (S.D.N.Y.2005) (explaining that the “incriminating character of the. keys was immediately apparent to the agents” because “[t]he seizing. agent had been informed prior to the arrest. that [the defendant] was believed to be-involved in illegal -gambling” and “further recognized the keys on the dresser as matching the type of lock commonly used to secure gambling ma-ehines[,]” and the keys were discovered “in the immediate vicinity of large amounts of cash”).

Even so, pursuant to 'the plain view doctrine, the illegality of the pill bottle was “immediately apparent” if Hicks had “reason to believe it [was] or contained] evidence of a crime,” or was contraband in and of itself. Delva, 13 F.Supp.3d at 276. In his deposition testimony, Hicks stated that from his vantage point, he observed that the pills were blue, even though the pill bottle was amber, and that, because the bottle was transparent, he was able to see that the bottle did not have a label. (Hicks Tr. 87-88.) In her Statement pursuant to Local Rule 56.1 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York (“Local Rule 56.1”), Deanda disputes the possibility that Hicks could see that the pills were blue by looking at the amber colored pill bottle. (Pl.’s 56.1 ¶ 8-A.) Moreover, Deanda disputes that the “unlabeled pill bottle was transparent.” (PL’s 56.1 ¶ 10.) However, De-anda points to nothing in the record to support these assertions. Instead, after these claims, Plaintiff cités only to the relevant portions of Hicks’s deposition testimony, in which Hicks testified that he was able to see that the pills were blue and that the bottle did not have a label.

Rule 56(c) of the Federal Rules of Civil Procedure states:

A party asserting a fact ... is genuinely disputed must support this assertion by (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Federal Rule 56(e), in turn, provides that “[i]f a party fails to properly support an assertion of fact ... the court may (1) give an opportunity to properly support ... the fact; (2) consider the fact undisputed for the purposes of the motion; (3) grant summary judgment if the motion and supporting materials ... show that the movant is entitled to it; or (4) issue any other appropriate order.” Similarly, Local Rule 56.1(d) requires that each assertion made by the movant or opponent in their 56.1 Statements “be followed by citation to evidence which would [>e admissible!)]” Moreover, if a party fails to properly support a statement by an adequate citation to the record, the Court may properly disregard that assertion. See Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73-74 (2d Cir.2001) (noting that “district courts in the Southern and Eastern Districts of New York have interpreted current Local Rule 56.1 to provide that where there are no citations or where the cited materials do not support the factual assertions in the [statements, the [c]ourt is free to disregard the assertion” and collecting cases (brackets and internal quotation marks omitted)).

In its July 29, 2015 Order, the Court, pursuant to its discretion under Federal Rule of Civil Procedure 56(e), and in an abundance of caution, provided Plaintiff an opportunity to support these assertions with citations to the record, before it “permissibly disregarded] Plaintiffs statements that Hicks could not see the color of the pills because the bottle was amber and the bottle was not transparent.” (Order 4-5 (Dkt. No. 56).) In response, Plaintiff conceded that “there is nothing in the record supporting [her] claim that Hicks could not see the color of the pills because the bottle was amber and the bottle not transparent.” (Letter from William I. Ar-onwald to Court (Aug. 6, 2015) (“PL’s Aug. 6 Letter”) (Dkt. No. 58).) Nevertheless, Plaintiff indicated that she “does dispute Hicks’[s] claim that he observed blue pills in the amber bottle” and explained that “[t]he bottle is in Plaintiffs possession and will be available at trial for the jury’s examination.” (Id.) This belated and unverified assertion is insufficient to create a material issue of fact as to what Hicks observed through, the pill bottle for the following reasons. First, as discussed above, Plaintiff cannot rely on her assertion in her Local 56.1 Statement to create a material issue of fact in the absence record evidence to support her claim. Plaintiffs counsel concedes that there is no such evidence in the record, including any testimony from Plaintiff. Indeed, the Court has found nothing that disputes Hicks’s claim of what he observed or could observe. As relevant,- during Deanda’s deposition, the following exchange occurred:

Q: Did there come a time when [Hicks] observed something in your purse?

A: Yes.

Q: When he observed that, did he ask to see it?

A: Yes.

Q: Did he use the words, “May I see that?” Let me rephrase it. What is it that he observed, to your knowledge?

A: When I opened my purse, he said you—what did he say? He said, “What are those pills?” That’s what he asked. He said “What are those pills? What’s in the bottle?” I told him—I don’t think I said anything immediately. He said “Those are OxyContin. Those are Oxy-Contin pills.' Let me see that bottle.” So I gave it to him.

Q: You gave him the bottle?

A: Yes.

(Deanda Tr. 19-20.) Similarly, at the 50-h hearing, Deanda stated that “[w]hen [she] went into [her] purse to get the license [Hicks] saw [she] had a bunch of stuff in there and he saw [that she] had pills. He questioned [her] about the pills and [she] told him—he said, Can I see those? [She] said sure. [She] gave it [sic] to him.” (Deanda 50-h Tr. 20.) Furthermore, while Deanda could have offered a declaration refuting Hicks’s claim based on her knowledge of the appearance of the pill bottle or its position in the purse, there was no such declaration submitted during the course of discovery. In short, throughout the course of discovery, Deanda did not testify, state, or otherwise declare that Hicks could not see the pill bottle or its contents, or that it was not transparent.

Plaintiffs belated claim that the pill bottle is in her “possession and will be available at trial for the jury’s examination,” (Pl.’s Aug. 6 Letter 1), is problematic. Defendants state in a letter dated August 12, 2015 that Plaintiff “ha[d] not before [then] made [the pill] bottle available to [Defendants.” (Letter from Taryn A. Chapman-Langrin to Court (Aug. 12, 2015) (“Defs.’ Aug. 15 Letter”) 1 (Dkt. No. 61).) Plaintiff does not explain why the pill bottle was not produced in discovery.’ Additionally, Defendants point out that Fontanette had testified on April 7, 2013 that the police department never returned the seized pill bottle," (see Fontanette Tr. 56-58), even though documents in the record supported that the unlabeled pill bottle was returned on February 18, 2013, (see Reply Decl. of Taryn A. Chapman-Langrin in Supp. of Mot. For Summ. J. & in Opp’n of Pl.’s Mot. For Adverse Inference Ex. A (Dkt. No. 53).) (Defs.’ Aug. 15 Letter 1). Defendants highlighted this, inconsistency in their briefing, (see Defs.’ Reply Mem. 5), and Plaintiff did not respond. Moreover, Plaintiff does not cla