Further, even accepting the City's factual statements as true, given its sparse opposition to the instant motion (as to the first and second prong of plaintiffs' burden, particularly) the Court finds the City to have been grossly negligent in the destruction of the e-mails in question. First, plaintiffs cite New York State law for the proposition that the City had a duty to preserve the e-mails in question apart from, and over and above, its obligations arising from the instant litigation. See
Pls. Mem. at 3–5, 7–8; N.Y. Arts and Cultural Affairs Law, Article 57–A (Local Government Records Law). On its face, the Local Government Records Law appears to create said obligation. Because the City ignores plaintiffs' detailed, specific argument on the issue, it effectively concedes that its failure to preserve the e-mails in question violates New York State law. Second, apart from its conclusory statement that the relevant pre-litigation time period ended on May 31, 2009, the City proffers no argument in opposition to plaintiffs' contention that the City's obligation to preserve records in connection with the instant litigation arose in March 2007, when the City issued a Stop Work Order. It is clear from the record-and the City proffers no evidence to the contrarythat the Stop Work Order was the beginning of a protracted, continuous challenge to the viability of The Cove development, which culminated in the instant lawsuit. “The obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.” Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 436 (2d Cir.2001). Plaintiff points out that the City commenced two prosecutions (arising out of alleged building violations) against plaintiffs in December 2007 and June 2008. Even assuming that the City's duty preserve did not arise in March 2007, it certainly arose in December 2007 upon commencement of the first prosecution. Finally, although the City maintains that its counsel initiated and communicated a litigation hold beginning on June 1, 2009, plaintiff proffers the deposition testimony of Councilwoman Claxton, wherein she testified that at no time was she ever advised to preserve communications, including e-mails. See
Notice of Motion, Exhibit K, p. 26. The City does not contend that its litigation hold would not extend to members of the City Common Council, nor does it proffer evidence (or even affirm) that its litigation hold was specifically communicated to Common Council members. In sum, based upon the record as it stands, the Court finds that the City's spoliation of the e-mails in question was grossly negligent.