Silano v. Cooney

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VIRGINIA SILANO v. DIANA COONEY ET AL.
(AC 45538)
Bright, C. J., and Alvord and Pellegrino, Js.

Syllabus

The plaintiff sought to recover damages from the defendant police officer
for malicious prosecution arising out of the criminal prosecution of the
plaintiff for a violation of conditions of release in the second degree
pursuant to the applicable statute ((Rev. to 2011) § 53a-222a). The plain-
tiff, C and G were all members of the same lake association. According
to allegations in the plaintiff’s complaint, in 2012, the defendant opened
an investigation after C and G falsely stated that the plaintiff had violated
a no contact order with C, by making an obscene gesture toward C and
G while they were on the premises of the lake association. During his
investigation, the defendant took sworn statements from C and G, spoke
with another association member, D, regarding the incident, and
obtained video surveillance footage from the association. The defendant
reviewed the surveillance footage and made notes while doing so, which
indicated that the footage did not capture the plaintiff communicating
with C on the day of the incident. Thereafter, the defendant returned the
video footage to the association, and it was later erased. The defendant
submitted an arrest warrant affidavit that included the sworn statements
from C and G, D’s statements, and the defendant’s notes regarding the
surveillance footage. The plaintiff was arrested, and, in 2016, the charges
against her were dismissed. The plaintiff commenced the present action
in 2018. The defendant filed a motion for summary judgment, claiming
that the action was untimely, that there was probable cause for the
challenged prosecution, and that the defendant had relied in good faith
on the prosecutor’s independent probable cause determination. In
response, the plaintiff argued, inter alia, that certain evidence submitted
by the defendant contained inadmissible hearsay and that her complaint
charged the defendant with malicious prosecution through intentional
spoliation. Thereafter, the plaintiff filed a motion for summary judgment.
The trial court granted the defendant’s motion, concluding that the
defendant met his burden of demonstrating the absence of any genuine
issue of material fact that the arrest warrant was supported by probable
cause and, therefore, that he was entitled to judgment as a matter of
law. The trial court denied the plaintiff’s motion, determining that she
did not successfully assert a claim for intentional spoliation of evidence.
On the plaintiff’s appeal to this court, held:
1. The trial court properly granted the defendant’s motion for summary
judgment because it did not err in determining that the defendant met
his burden of demonstrating the absence of any genuine issue of material
fact that the arrest warrant was supported by probable cause: contrary
to the plaintiff’s contention that the defendant improperly relied on the
sworn statements of C and G, which she contends he credited over the
statements of the plaintiff and D and the video surveillance evidence,
the defendant was permitted to rely on the complaints of third parties
to establish probable cause, in this case the putative victim and an
eyewitness; moreover, the defendant considered the available exculpa-
tory evidence and identified it in his arrest warrant affidavit, including
D’s statements that the plaintiff did not have contact with C and G
and the defendant’s surveillance video notes, which indicated that the
footage did not capture the plaintiff communicating with C, and the
plaintiff failed to submit evidence to demonstrate a genuine issue of
material fact as to the lack of probable cause; furthermore, whether the
defendant acted with malice was not addressed by the trial court and
was not at issue on appeal, and, contrary to the plaintiff’s assertions, the
defendant’s state of mind did not negate the existence of probable cause.
2. The trial court properly rejected the plaintiff’s arguments regarding spolia-
tion of evidence: contrary to the plaintiff’s assertion, her claimed entitle-
ment to an adverse inference with respect to the surveillance video
evidence was insufficient on its own to create a genuine issue of material
fact as to the want of probable cause element for the purposes of
defeating summary judgment, and, because the plaintiff failed to adduce
any evidence to support want of probable cause, the trial court properly
concluded that there was no genuine issue of material fact as to that
issue; moreover, the plaintiff did not plead intentional spoliation of
evidence as a separate cause of action in her complaint, and, even if
this court were to construe her complaint as alleging such a separate
cause of action, it failed as a matter of law on the first essential element
of a claim for intentional spoliation, namely, that the defendant had
knowledge of a pending or impending civil action involving the plaintiff,
as the defendant returned the video to the association, its rightful owner,
in 2012, and the plaintiff did not file her malicious prosecution claim
until 2018; accordingly, no bona fide or rational argument could be made
that, under the circumstances, the defendant knew or should have known
that his return of the video in 2012 would be relevant to a malicious
prosecution claim asserted by the plaintiff six years later.
3. This court declined to review the plaintiff’s claim that the trial court
should not have considered the defendant’s notes relating to the surveil-
lance video in addressing his motion for summary judgment because
the notes did not satisfy the state of mind exception to the hearsay rule
set forth in the Connecticut Code of Evidence (§ 8-3 (4)) and, as such,
were inadmissible hearsay: the trial court determined that the notes
satisfied the business records exception to the hearsay rule set forth in
the applicable statute (§ 52-180), and the plaintiff abandoned any claim
of error regarding the admissibility of the notes under that exception
because she did not brief it; accordingly, it was uncontested that the
notes were considered properly under the business records exception
to the hearsay rule.
Argued October 10, 2023—officially released February 13, 2024

Procedural History

Action to recover damages for malicious prosecution,
and for other relief, brought to the Superior Court in
the judicial district of Fairfield, where the plaintiff with-
drew her claims against the defendant Diane Gromley
et al.; thereafter, the court, Stevens, J., granted the
named defendant’s motion for summary judgment and
rendered judgment thereon, from which the plaintiff
appealed to this court, Alvord, Suarez and Lavine, Js.,
which affirmed the judgment of the trial court; subse-
quently, the court, Stevens, J., granted the motion for
summary judgment filed by the defendant Kevin Ham-
mel and denied the plaintiff’s motion for summary judg-
ment and rendered judgment thereon, from which the
plaintiff appealed. Affirmed.
Virginia Silano, self-represented, the appellant
(plaintiff).
Dennis M. Durao, with whom, on the brief, was
Kimberly A. Bosse, for the appellee (defendant Kevin
Hammel).
Opinion

ALVORD, J. The self-represented plaintiff, Virginia
Silano, appeals from the summary judgment rendered
by the trial court in favor of the defendant Kevin Ham-
mel on count two of the plaintiff’s complaint alleging
malicious prosecution.1 On appeal, the plaintiff claims
that the court improperly (1) rendered summary judg-
ment in favor of the defendant on her malicious prose-
cution claim, (2) rejected her arguments with respect
to intentional spoliation, and (3) admitted into evidence
the defendant’s contemporaneous notes regarding his
viewing of a surveillance video that the plaintiff con-
tends the defendant failed to preserve.2 We affirm the
judgment of the court.
The following procedural history is relevant to our
resolution of this appeal. This action was commenced
on June 27, 2018. The fourth amended, and operative,
complaint was filed on December 10, 2019. The second
count alleges malicious prosecution against the defen-
dant, arising out of the criminal prosecution of the plain-
tiff for violation of General Statutes (Rev. to 2011) § 53a-
222a,3 which charge ultimately was dismissed.
In her complaint, the plaintiff alleged that, on or about
August 9, 2012, Trumbull police officer Michael Takacs
‘‘investigated an incident initially reported by the plain-
tiff wherein the plaintiff was being actively harassed
by [Diana Cooney and Diane Gromley]. At that time
. . . Cooney stated to Officer Takacs that a condition
of release was imposed upon the plaintiff prohibiting
the plaintiff from communicating with . . . Cooney.
Officer Takacs reported that he did not believe a viola-
tion of the [no contact] order occurred.’’ The plaintiff
alleged that the defendant, also a Trumbull police offi-
cer, commenced an investigation following ‘‘false state-
ments’’ by Cooney and Gromley that the plaintiff had
violated the no contact order by ‘‘giving . . . Cooney
and Gromley the ‘finger’ in the presence of their chil-
dren’’ on the premises of the Pinewood Lake Associa-
tion (association). The plaintiff alleged that the defen-
dant ‘‘initiated, instigated or procured the plaintiff’s
arrest without probable cause . . . .’’ The plaintiff
alleged that, although the defendant took sworn state-
ments from Cooney and Gromley, he ‘‘failed to take or
memorialize in any way his interview with [Brad] Day
(who has since passed away), a neutral eyewitness to
the events of August 9, 2012.’’ The plaintiff alleged that
Day’s statement was that ‘‘the plaintiff did not communi-
cate with Cooney and Gromley’’ and that ‘‘Cooney and
Gromley were harassing and instigating the plaintiff.’’
The plaintiff alleged that, contrary to Cooney’s and
Gromley’s statements that their children were present
at the time of the alleged violation of the order, the
children actually were approximately twenty feet away
in the water.
The plaintiff alleged that, ‘‘[i]n the course of [the
defendant’s] investigation, [the defendant] took posses-
sion and control of the video surveillance system owned
and operated by the [association]. . . . At all times,
the plaintiff believed and trusted that [the defendant]
preserved and protected the video evidence and that it
would be available to the plaintiff to demonstrate not
only the falsehood of Cooney[’s] and Gromley’s August,
2012 statements but to demonstrate the ongoing harass-
ment and abuse sustained by the plaintiff as a result of
. . . Cooney’s actions. . . . In December of 2012, [the
defendant] submitted a warrant for the plaintiff’s arrest
which included Gromley[’s] and Cooney’s false state-
ments and [the defendant’s] interpretation of the sur-
veillance evidence. The plaintiff was arrested in January
of 2013, pursuant to [the defendant’s] warrant.’’ The
plaintiff alleged that the defendant had a duty to pre-
serve and maintain the video surveillance evidence,
which the plaintiff alleged would have demonstrated
that Cooney’s and Gromley’s statements were false. The
plaintiff alleged that the defendant ‘‘was aware of the
value of . . . Day’s statement and the video evidence
to the plaintiff and nevertheless acted with official ani-
mus by making a conscious effort to destroy or suppress
the evidence.’’ The plaintiff alleged that the video sur-
veillance evidence was ‘‘relevant, material, essential
and irreplaceable to establish Cooney[’s] and Gromley’s
actions before, during and after’’ the claimed violation
and ‘‘its absence deprived the plaintiff’’ of her defense
on the criminal charge.
The plaintiff further alleged that the defendant had
a personal relationship with Cooney’s husband, George
Cooney, who was president of the association and a
former police officer. The plaintiff alleged that the
defendant ‘‘falsified inventory records as to the same
surveillance system, which was material and relevant
to the plaintiff’s defense of false criminal felony charges
instigated by George Cooney and others on or about
February 8, 2011, and was pivotal, relevant and material
to the plaintiff’s successful civil malicious prosecution
and conspiracy action of George Cooney.’’
The plaintiff alleged that she had been damaged by
‘‘the deprivation of justice’’ resulting from the defen-
dant’s claimed aiding and abetting Cooney’s and Grom-
ley’s false and malicious prosecution of the plaintiff and
the defendant’s ‘‘conscious destruction, suppression or
loss of relevant and material evidence,’’ which deprived
the plaintiff of its use to institute a civil action against
Cooney and Gromley and to establish that Cooney and
Gromley were actively harassing the plaintiff. The plain-
tiff alleged that she has suffered severe emotional dis-
tress as a result of the defendant’s actions.
The plaintiff alleged that a trial was held ‘‘in Novem-
ber of 2013 for the false charges which ended in a
mistrial after [the defendant] violated an evidence order
set by the court.’’ The criminal charges against the plain-
tiff were dismissed on July 1, 2016.
On October 29, 2021, the defendant filed the operative
answer and five special defenses, including a special
defense alleging that the plaintiff’s malicious prosecu-
tion claim was barred by the statute of limitations set
forth in General Statutes § 52-577.
On March 5, 2020, the defendant filed a motion for
summary judgment, accompanying exhibits, and a
memorandum of law in support, wherein he argued,
inter alia, that no genuine issues of material fact existed
and that he was entitled to judgment as a matter of law
because the plaintiff’s action was untimely, there was
probable cause for the challenged prosecution, and the
defendant relied in good faith on the prosecutor’s inde-
pendent probable cause determination. On May 14,
2021, the plaintiff filed a memorandum of law in opposi-
tion to the defendant’s motion for summary judgment
and accompanying exhibits. In her opposition, the plain-
tiff argued that certain evidence submitted by the defen-
dant contained inadmissible hearsay. The plaintiff fur-
ther argued that her complaint ‘‘charges [the defendant]
with malicious prosecution through spoliation and
intentional spoliation.’’ She argued that ‘‘the adverse
inference doctrine should defeat [the defendant’s] prob-
able cause argument.’’ The defendant filed a reply on
June 2, 2021. With respect to spoliation, he first argued
that the plaintiff improperly had raised her claim of
intentional spoliation for the first time in her opposition
to the defendant’s summary judgment motion. In addi-
tion, he argued that, even if the second count of her
complaint could be read to include a claim of spoliation
of evidence, such claim was barred by the statute of
limitations contained in § 52-577. Third, he contended
that the plaintiff had not demonstrated that she would
be entitled to an adverse inference. As to probable
cause, the defendant argued, inter alia, that the plaintiff
had failed to demonstrate a lack of probable cause.
On July 15, 2021, the plaintiff filed a motion for sum-
mary judgment, seeking judgment in her favor on the
malicious prosecution claim. On August 30, 2021, the
defendant filed a memorandum of law in opposition
to the plaintiff’s motion for summary judgment. The
plaintiff filed a reply on September 9, 2021. On January
10, 2022, the plaintiff filed a supplemental memorandum
in opposition to the defendant’s motion for summary
judgment and in support of her own motion for sum-
mary judgment and accompanying exhibits. Oral argu-
ment was held on January 25, 2022.
On May 12, 2022, the court, Stevens, J., issued a
memorandum of decision in which it granted the defen-
dant’s motion for summary judgment and denied the
plaintiff’s motion. The court concluded that the defen-
dant met his burden of demonstrating the absence of
any genuine issue of material fact that the arrest warrant
was supported by probable cause and, accordingly, the
defendant was entitled to judgment as a matter of law.
Specifically, the court considered that ‘‘Judge Iannotti
issued an order as a condition of the plaintiff’s release
on criminal charges then pending against her precluding
the plaintiff from having contact with certain individu-
als including Cooney. . . . On August 9, 2012, the
defendant received a text message from George
Cooney, informing the defendant that Cooney had
claimed that the plaintiff gave her the finger in front of
their daughters. . . . Cooney sent a sworn statement
to the defendant on August 10, 2012 . . . where
Cooney stated that the plaintiff waved at her and, after
she did not respond, the plaintiff stuck up her middle
finger. . . . The defendant received a sworn statement
from Gromley on August 15, 2012, which substantially
corroborated Cooney’s statement. . . . The state-
ments from Cooney and Gromley both denied that Day
was present when the incident occurred. . . . The
defendant also reviewed the videos from the [associa-
tion] surveillance system and took contemporaneous
notes of the subject matter depicted, with correspond-
ing time stamp[s]. . . . In both the defendant’s incident
report and arrest warrant affidavits, the defendant dis-
closed exculpatory information that the videos did not
capture the plaintiff communicating with Cooney.’’
(Citations omitted.) On the basis of this evidence, the
court determined, as a matter of law, that the defendant
acted with probable cause in seeking the arrest warrant.
Regarding the plaintiff’s claim that she had alleged
the tort of intentional spoliation, the court first noted
that ‘‘it is questionable whether the allegations of the
plaintiff’s complaint are sufficient to satisfy all of the
elements for this cause of action . . . .’’ The court con-
cluded that, ‘‘[b]ased on [the] facts, as a matter of law,
the plaintiff cannot successfully assert a claim for inten-
tional spoliation of evidence.’’ Specifically, the court
found that the plaintiff could not satisfy the first element
of an action for intentional spoliation of evidence, ‘‘ ‘the
defendant’s knowledge of a pending or impending civil
action involving the plaintiff.’ ’’ See Rizzuto v. Davidson
Ladders, Inc., 280 Conn. 225, 244–45, 905 A.2d 1165
(2006).
The court stated: ‘‘As a matter of law, the defendant’s
return of the video in October, 2012, has nothing to do
with the plaintiff’s malicious prosecution action here
because this action was filed years later in 2018. Stated
differently, contrary to the plaintiff’s position, the cause
of action for intentional spoliation of evidence is based
on the destruction of evidence that is done with the
intent to make the evidence unavailable in a pending
or impending civil action involving the plaintiff. Here,
the defendant was under no legal obligation to retain
this video for six years and not return it to its rightful
owner when no civil action between the parties was
pending or impending. The video did not belong to the
defendant, and he had a legal obligation to return the
video to its rightful owner. Furthermore, no bona fide
or rational argument can be made that under the circum-
stances presented the defendant knew or should have
known that his return of this video in 2012 would be
relevant to a malicious prosecution claim asserted by
the plaintiff some six years later. As a matter of law,
no malicious prosecution action could have been insti-
tuted or contemplated when the defendant returned
the video to the [association] because at that time, the
criminal complaint against the plaintiff, on which her
malicious prosecution claim is based, had not even been
instituted or adjudicated. It is obviously impossible for
anyone to contemplate the assertion of a malicious
prosecution claim before the prosecution itself even
exists. The plaintiff’s arguments to the contrary are
rejected. Indeed, nothing in the plaintiff’s complaint
explicitly alleges that the video was returned to its
owner specifically in order to disrupt the plaintiff’s abil-
ity to assert the present malicious prosecution claim
between the plaintiff and the defendant.’’ (Emphasis
omitted.)
Before turning to the plaintiff’s claims on appeal, we
set forth the relevant standard of review. ‘‘In seeking
summary judgment, it is the movant who has the burden
of showing the nonexistence of any issue of fact. The
courts are in entire agreement that the moving party
for summary judgment has the burden of showing the
absence of any genuine issue as to all the material facts,
which, under applicable principles of substantive law,
entitle him to a judgment as a matter of law. The courts
hold the movant to a strict standard. To satisfy his
burden the movant must make a showing that it is quite
clear what the truth is, and that excludes any real doubt
as to the existence of any genuine issue of material
fact. . . . As the burden of proof is on the movant, the
evidence must be viewed in the light most favorable to
the opponent. . . . When documents submitted in sup-
port of a motion for summary judgment fail to establish
that there is no genuine issue of material fact, the non-
moving party has no obligation to submit documents
establishing the existence of such an issue. . . . Once
the moving party has met its burden, however, the
opposing party must present evidence that demon-
strates the existence of some disputed factual issue.
. . . It is not enough, however, for the opposing party
merely to assert the existence of such a disputed issue.
Mere assertions of fact . . . are insufficient to estab-
lish the existence of a material fact and, therefore, can-
not refute evidence properly presented to the court
under Practice Book § [17-45]. . . . Our review of the
trial court’s decision to grant [or to deny a] motion
for summary judgment is plenary.’’ (Footnote omitted;
internal quotation marks omitted.) Atlantic St. Heritage
Associates, LLC v. Atlantic Realty Co., 216 Conn. App.
530, 539–40, 285 A.3d 1128 (2022).
I
The plaintiff’s first claim on appeal is that the court
improperly rendered summary judgment on her mali-
cious prosecution claim. Specifically, she contends that
the court erred in determining that probable cause
existed and maintains that ‘‘[t]he defendant correctly
argued that probable cause is a complete defense to
malicious prosecution, but both the defendant and the
court ignored the plaintiff’s case. The resolution of
probable cause in this case required the determination
of what material facts were known to the defendant
before he submitted his arrest warrant affidavit but did
not report in his arrest warrant affidavit.’’ We are not
persuaded that the court erred in determining that the
defendant met his burden of demonstrating the absence
of any genuine issue of material fact that the arrest
warrant was supported by probable cause.
We begin with the applicable legal standards. An
action for malicious prosecution ‘‘requires a plaintiff to
prove that: (1) the defendant initiated or procured the
institution of criminal proceedings against the plaintiff;
(2) the criminal proceedings have terminated in favor of
the plaintiff; (3) the defendant acted without probable
cause; and (4) the defendant acted with malice, primar-
ily for a purpose other than that of bringing an offender
to justice.’’ McHale v. W.B.S. Corp., 187 Conn. 444, 447,
446 A.2d 815 (1982); see also Mulligan v. Rioux, 229
Conn. 716, 731–32 n.19, 643 A.2d 1226 (1994) (‘‘[i]n addi-
tion to malice, [a]n action for malicious prosecution
. . . requires a plaintiff to prove that: (1) the defendant
initiated or procured the institution of criminal proceed-
ings against the plaintiff; (2) the criminal proceedings
have terminated in favor of the plaintiff; [and] (3) the
defendant acted without probable cause’’ (internal quo-
tation marks omitted)); Vandersluis v. Weil, 176 Conn.
353, 356, 407 A.2d 982 (1978) (‘‘ ‘The existence of proba-
ble cause is an absolute protection against an action
for malicious prosecution, and what facts, and whether
particular facts, constitute probable cause is always a
question of law.’ Brodrib v. Doberstein, 107 Conn. 294,
296, 140 A. 483 [1928]. And, as previously stated, want
of probable cause may not be inferred from proof of
malice.’’).
‘‘Probable cause has been defined as the knowledge
of facts sufficient to justify a reasonable [person] in
the belief that he [or she] has reasonable grounds for
prosecuting an action. . . . Mere conjecture or suspi-
cion is insufficient. . . . Moreover, belief alone, no
matter how sincere it may be, is not enough, since it
must be based on circumstances which make it reason-
able. . . . Although want of probable cause is negative
in character, the burden is upon the plaintiff to prove
affirmatively, by circumstances or otherwise, that the
defendant had no reasonable ground for instituting the
criminal proceeding.’’ (Citations omitted; internal quo-
tation marks omitted.) Mulligan v. Rioux, supra, 229
Conn. 739.
In concluding that the defendant acted with probable
cause in submitting an arrest warrant affidavit charging
the plaintiff with violation of § 53a-222a, the court con-
sidered the following: the February 3, 2012 transcript of
proceedings before Judge Iannotti in which the plaintiff
acknowledged that a no contact order was in existence
that extended to Cooney; the defendant’s statement
in the arrest warrant affidavit that he received a text
message from George Cooney, informing the defendant
that his wife, Cooney, had reported that the plaintiff
gave her the middle finger in front of their daughters;
the defendant received a sworn statement dated August
9, 2012, in which Cooney stated that the plaintiff waved
at her and, after she did not respond, the plaintiff stuck
up her middle finger; the defendant received a sworn
statement dated August 15, 2012, in which Gromley
substantially corroborated Cooney’s statement, particu-
larly that the plaintiff had given them the middle finger;
the statements of both Gromley and Cooney that Day
was not with the plaintiff at the time of the incident;
and the defendant’s notes from his viewing of the videos
from the association surveillance system that indicated
that the videos did not capture the plaintiff communicat-
ing with Cooney.
The plaintiff argues on appeal that ‘‘there are two
points of contention factoring against probable cause
which were known to the defendant and not reported
in his warrant.’’4 She argues first that the ‘‘conditions
relied upon to establish the general intent element of
the crime charged did not occur’’ and, second, that the
defendant had a ‘‘duty to report facts from the video
evidence . . . which further established Cooney and
Gromley were not credible or reliable.’’ We are not
persuaded.
The plaintiff challenges the defendant’s reliance on
the statements of Cooney and Gromley, which she con-
tends he credited over the statements of the plaintiff and
Day and the video surveillance evidence. The plaintiff
relies on case law stating that ‘‘[t]he scope of an
arresting officer’s obligation to consider exculpatory
evidence is guided by two competing principles. On the
one hand, once a police officer has a reasonable basis
for believing there is probable cause, he is not required
to explore and eliminate every theoretically plausible
claim of innocence before making an arrest. Yet, on
the other hand, an officer may not disregard plainly
exculpatory evidence.’’ (Internal quotation marks omit-
ted.) Marchand v. Hartman, 395 F. Supp. 3d 202, 219
(D. Conn. 2019); see also Martel v. South Windsor, 562
F. Supp. 2d 353, 358 (D. Conn. 2008) (‘‘In seeking an
arrest warrant, a [p]olice officer . . . may not pur-
posely withhold or ignore exculpatory evidence that, if
taken into account, would void probable cause. . . .
A failure to make further inquiry when a reasonable
person would have done so may evidence a lack of
probable cause.’’ (Internal quotation marks omitted.)),
aff’d, 345 Fed. Appx. 663 (2d Cir. 2009). The defendant
responds by directing this court to case law providing
that ‘‘[a] police officer may rely on the complaint of
a third party to establish probable cause.’’ Craig v.
Krzeminski, 764 F. Supp. 248, 250 (D. Conn. 1991). ‘‘[I]t
is well established that a law enforcement officer has
probable cause to arrest if he received his information
from some person, normally the putative victim or eye-
witness, who it seems reasonable to believe is telling
the truth. Furthermore, [t]he veracity of citizen [com-
plainants] who are the victims of the very crime they
report to the police is assumed.’’ (Internal quotation
marks omitted.) Crocco v. Advance Stores Co., 421 F.
Supp. 2d 485, 506 (D. Conn. 2006).
In the present case, the defendant considered the
exculpatory evidence available and identified it in his
arrest warrant affidavit. The arrest warrant affidavit
included information related to Day, specifically that
Day had approached Officer Takacs while he was speak-
ing with Cooney and Gromley and ‘‘said that [the plain-
tiff] did not instigate contact with either Gromley or
Cooney. He also said that both [women] are constantly
trying to provoke [the plaintiff].’’5 The arrest warrant
affidavit also included the defendant’s notes from his
viewing of the videos from the association surveillance
system, which indicated that the videos did not capture
the plaintiff communicating with Cooney. In response,
the plaintiff did not submit evidence to demonstrate a
genuine issue of material fact as to the lack of proba-
ble cause.
The plaintiff highlights in her appellate brief her con-
cern with respect to ‘‘the defendant’s uncontroverted
history of abusing his authority by acting as [George]
Cooney[’s] and . . . Cooney’s personal prosecutor,
defense counsel and public relations officer.’’ The reci-
tation of the defendant’s purported ‘‘history of bad acts’’
is relevant not to whether probable cause existed for
the arrest warrant, but to showing that the defendant
acted with malice, a distinct element of a claim of mali-
cious prosecution that was not addressed by the trial
court in the present case and is not at issue on appeal.
‘‘In a malicious prosecution action, the defendant is
said to have acted with malice if he [or she] acted
primarily for an improper purpose; that is, for a purpose
other than that of securing the proper adjudication of
the claim on which [the proceedings] are based . . .
such as the desire to occasion expense to the other
party.’’ (Citation omitted; internal quotation marks
omitted.) Mulligan v. Rioux, supra, 229 Conn. 732. It
is well established that ‘‘the plaintiff, to recover, must
prove both want of probable cause and malice. While
malice may be inferred from the want of probable cause,
proof of malice does not dispense with the necessity of
proving want of probable cause.’’ Brodrib v. Doberstein,
supra, 107 Conn. 299; see also Thompson v. Beacon
Valley Rubber Co., 56 Conn. 493, 497, 16 A. 554 (1888)
(‘‘[T]here was considerable evidence of probable cause,
enough it would seem to warrant the jury in finding
that it existed. We must therefore assume that the jury
so found. If so, that alone would entitle the defendant
to a verdict irrespective of the question of malice.’’).
Regardless of the plaintiff’s recitation of circumstances
that could be relevant to the question of malice, the
defendant’s state of mind does not negate the existence
of probable cause.
Because the court properly concluded that the defen-
dant met his burden of demonstrating the absence of
any genuine issue of material fact that the arrest warrant
was supported by probable cause, it properly rendered
summary judgment on the plaintiff’s malicious prosecu-
tion claim.
II
The plaintiff’s second claim on appeal is that the
court improperly rejected her arguments with respect
to intentional spoliation of evidence. She ‘‘requests that
[this] court review the court’s refusal to impose any
sanction against the defendant for his spoliation of the
video evidence as an abuse of discretion . . . . ’’ We
understand her contention to be that there necessarily
must be a genuine issue of material fact as to the want
of probable cause element for the purposes of defeating
summary judgment based on her claimed entitlement
to an adverse inference with respect to the surveillance
video evidence. We conclude that the trial court prop-
erly rejected the plaintiff’s arguments regarding spolia-
tion.
We first set forth the relevant legal principles. As
first recognized in Beers v. Bayliner Marine Corp., 236
Conn. 769, 777–79, 675 A.2d 829 (1996), ‘‘[a]n adverse
inference may be drawn against a party who has
destroyed evidence only if the trier of fact is satisfied
that the party who seeks the adverse inference has
proven the following. First, the spoliation must have
been intentional. . . . [There need not have been] an
intent to perpetrate a fraud by the party or his agent
who destroyed the evidence but, rather . . . the evi-
dence [must have] been disposed of intentionally and
not merely destroyed inadvertently. . . .
‘‘Second, the destroyed evidence must be relevant
to the issue or matter for which the party seeks the
inference. . . . Third, the party who seeks the infer-
ence must have acted with due diligence with respect
to the spoliated evidence. . . . Finally . . . the trier
of fact . . . is not required to draw the inference that
the destroyed evidence would be unfavorable but . . .
it may do so upon being satisfied that the above condi-
tions have been met.’’ (Internal quotation marks omit-
ted.) Surrells v. Belinkie, 95 Conn. App. 764, 770–71,
898 A.2d 232 (2006).
This court in Perez v. Metropolitan District Commis-
sion, 186 Conn. App. 466, 477, 200 A.3d 202 (2018),
remarked that ‘‘the plaintiff does not cite any authority,
nor are we aware of any, for the claim that a permissive
adverse inference predicated on a party’s intentional
spoliation of evidence can serve to raise a genuine issue
of material fact for the purposes of defeating summary
judgment . . . .’’ The court nevertheless addressed the
merits of the contention. Id. We do the same.
‘‘Pursuant to Beers, a party suffering from spoliation
cannot build an underlying case on the spoliation infer-
ence alone; for an underlying claim to be actionable,
the [party] must also possess some concrete evidence
that will support the underlying claim. . . . Accord-
ingly, in the context of summary judgment, a plaintiff
cannot displace the evidentiary foundation necessary
to raise a genuine issue of material fact with the mere
supposition that an adverse inference will be instructed
at trial.’’ (Citation omitted; footnote omitted; internal
quotation marks omitted.) Id., 477–78; see also Rizzuto
v. Davidson Ladders, Inc., supra, 280 Conn. 238 (‘‘a
plaintiff in a product liability action cannot rely solely
on the spoliation inference to withstand a motion for
summary judgment or a motion for a directed verdict;
he must also have some independent concrete evidence
of a product defect’’).
In the present case, the plaintiff has failed to adduce
any evidence to support want of probable cause and,
accordingly, the trial court properly concluded that
there was no genuine issue of material fact as to this
issue.
Although the plaintiff did not plead intentional spolia-
tion of evidence as a separate cause of action in her
complaint,6 and the trial court recognized that ‘‘it is
questionable whether the allegations of the plaintiff’s
complaint are sufficient to satisfy all of the elements
for this cause of action,’’ the trial court nevertheless
analyzed the plaintiff’s claim as purporting to allege a
cause of action for intentional spoliation.
In Rizzuto v. Davidson Ladders, Inc., supra, 280
Conn. 251, our Supreme Court recognized the tort of
intentional spoliation of evidence as an independent
cause of action. ‘‘[T]he tort . . . consists of the follow-
ing essential elements: (1) the defendant’s knowledge
of a pending or impending civil action involving the
plaintiff; (2) the defendant’s destruction of evidence;
(3) in bad faith, that is, with intent to deprive the plaintiff
of his cause of action; (4) the plaintiff’s inability to
establish a prima facie case without the spoliated evi-
dence; and (5) damages.’’ Id., 244–45.
In the present case, the trial court rejected the plain-
tiff’s claim on the first essential element, concluding
that, ‘‘[a]s a matter of law, the defendant’s return of
the video in October, 2012, has nothing to do with the
plaintiff’s malicious prosecution action here because
this action was filed years later in 2018. Stated differ-
ently, contrary to the plaintiff’s position, the cause of
action for intentional spoliation of evidence is based
on the destruction of evidence that is done with the
intent to make the evidence unavailable in a pending
or impending civil action involving the plaintiff. Here,
the defendant was under no legal obligation to retain
this video for six years and not return it to its rightful
owner when no civil action between the parties was
pending or impending. The video did not belong to the
defendant and he had a legal obligation to return the
video to its rightful owner. Furthermore, no bona fide
or rational argument can be made that under the circum-
stances presented the defendant knew or should have
known that his return of this video in 2012 would be
relevant to a malicious prosecution claim asserted by
the plaintiff some six years later. As a matter of law,
no malicious prosecution action could have been insti-
tuted or contemplated when the defendant returned
the video to the [association] because at that time, the
criminal complaint against the plaintiff, on which her
malicious prosecution claim is based, had not even been
instituted or adjudicated. It is obviously impossible for
anyone to contemplate the assertion of a malicious
prosecution claim before the prosecution itself even
exists. The plaintiff’s arguments to the contrary are
rejected. Indeed, nothing in the plaintiff’s complaint
explicitly alleges that the video was returned to its
owner specifically in order to disrupt the plaintiff’s abil-
ity to assert the present malicious prosecution claim
between the plaintiff and the defendant.’’ (Emphasis
omitted.)
We agree with the trial court’s analysis that, even
were we to construe the plaintiff’s complaint as alleging
a cause of action for intentional spoliation, such claim
fails as a matter of law on the first essential element
of an intentional spoliation claim.7
III
Finally, the plaintiff argues that the defendant’s notes,
found within the arrest warrant affidavit, should not
have been considered by the court when addressing
the defendant’s motion for summary judgment because
they constitute inadmissible hearsay. Specifically, she
contends that the court improperly considered the
notes under the state of mind exception to the hearsay
rule codified at § 8-3 (4) of the Connecticut Code of
Evidence.8 The only notes expressly identified in the
plaintiff’s appellate brief as having been improperly con-
sidered, however, are those contemporaneous notes
regarding the defendant’s viewing of the surveillance
video, which the trial court determined satisfied the
business records exception, codified at General Stat-
utes § 52-180.9 Because the plaintiff does not contest
that the notes were admissible under that exception,
we decline to review the plaintiff’s claim.
The following additional procedural history is rele-
vant. In its memorandum of decision, the court
addressed several evidentiary issues raised by the plain-
tiff, including that the defendant’s contemporaneous
notes regarding his viewing of the surveillance video
constituted inadmissible hearsay. Specifically, the
plaintiff challenged the admissibility of the following
passage in the arrest warrant affidavit: ‘‘Upon reviewing
the video the affiant observed:
‘‘Camera #2. 14:14:01 Silano arrives to the patio with
one dog (not two as she stated) and sits at a table with
other known persons. (Blonde haired woman in pink
dress. Man in suit).
‘‘Camera #2. 14:30:55 Silano leaves table with one
dog. (It appears that from the time Silano arrives and
leaves she is having a conversation with the people at
the table).
‘‘Camera #3 also picks up Silano leaving with one dog.
‘‘Camera #6 14:31:15 Silano walking along grass
toward parking lot. Then changes direction and walks
toward beach/fence area near large tree. Stops briefly
to pet dog. She is now facing mostly toward the fence/
beach area.
‘‘14:31:44 Silano walking along fence and then out of
sight. At [no] time does any camera pick up evidence
of Silano communicating with Cooney.’’
The court rejected the plaintiff’s argument that the
notes were inadmissible, concluding: ‘‘The parties’ sub-
missions indicate that the defendant obtained the sur-
veillance videos owned and operated by the [associa-
tion] in the course of his investigation. . . .
Accordingly, there is no dispute that the defendant,
a police officer assigned to investigate the reported
incident, had a responsibility or duty to report what he
observed in the videos as part of the investigation. The
plain language of these entries indicates they were writ-
ten by the defendant as result of his direct observation
of the surveillance videos. There can be no bona fide
dispute about the facts that the notes were made by
the defendant contemporaneously with his observation
of the tapes, and the making of these notes was fairly
within the regular course of his investigation. Therefore,
the defendant’s notes as stated in the arrest warrant
affidavit are admissible in these proceedings under the
business records exception to the hearsay rule. The
defendant’s contemporaneous notes describe both
Cooney and the plaintiff’s actions to the extent that
they were captured in the [association’s] cameras. The
defendant’s notes explain that some of the plaintiff’s
actions were not captured due to a large tree blocking
the cameras without further speculations. Therefore,
the defendant’s contemporaneous notes and assertions
in the arrest warrant affidavit satisfy the requisites of
the business records exception . . . .’’ (Citations omit-
ted.)
In her appellate brief, the plaintiff argues that the
court ‘‘erred in admitting the defendant’s conclusions
of fact derived from the video evidence he spoiled.’’
The only material she includes in her appellate brief as
objectionable is the contemporaneous notes previously
identified, and she argues that they were improperly
admitted under the state of mind exception to the hear-
say rule. She does not brief, however, any claim of error
regarding the notes being admissible under the business
records exception to the hearsay rule. See, e.g., In re
Probate Appeal of Nguyen, 199 Conn. App. 498, 507,
236 A.3d 291 (2020) (noting that ‘‘[p]olice reports are
normally admissible under the business records excep-
tion to the hearsay rule as set forth in . . . § 52-180’’
and that ‘‘[t]o be admissible under [that] exception, the
report must be based entirely upon the police officer’s
own observations’’ (internal quotation marks omitted)).
Accordingly, she abandons any claim of error based
on the court’s consideration of the notes under that
exception. See State v. Carattini, 142 Conn. App. 516,
529–30, 73 A.3d 733 (defendant who briefed claim of
error that statement was inadmissible as statement by
coconspirator but failed to brief claim of error regarding
statement being admitted as statement against penal
interest had abandoned claim of error as to admission
of statement as statement against penal interest), cert.
denied, 309 Conn. 912, 69 A.3d 308 (2013). Even if the
challenged material was inadmissible under the state
of mind exception, the plaintiff’s failure to challenge
the material under the business records exception to
the hearsay rule would leave uncontested that the mate-
rial was considered properly under that exception. We,
therefore, decline to reach the plaintiff’s challenge to
the admissibility of the defendant’s notes under the
state of mind exception to the hearsay rule.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Count one of the plaintiff’s complaint alleged malicious prosecution
against Diana Cooney. On January 9, 2020, the court rendered summary
judgment in favor of Cooney on the basis that the plaintiff’s claim was
barred by the statute of limitations. Following the denial of the plaintiff’s
motion to reargue, the plaintiff filed an appeal with this court. This court
affirmed the judgment of the trial court. Silano v. Cooney, 209 Conn. App.
904, 264 A.3d 211 (2021).
The plaintiff’s original complaint in this action contained nineteen counts
and also had named as defendants Diane Gromley and Christopher Kapteina,
but the plaintiff withdrew the action against these defendants in 2019.
Accordingly, all references in this opinion to the defendant are to Hammel.
2
The plaintiff also claims on appeal that the trial court improperly deter-
mined that any claim for intentional spoliation of evidence was barred by
the three year statute of limitations of General Statutes § 52-577. Because
we conclude that the court properly rejected the plaintiff’s arguments with
respect to intentional spoliation on their merits, we need not reach the
plaintiff’s claim on appeal with respect to the statute of limitations.
3
General Statutes (Rev. to 2011) § 53a-222a (a) provides: ‘‘A person is
guilty of violation of conditions of release in the second degree when, while
charged with the commission of a misdemeanor or motor vehicle violation
for which a sentence to a term of imprisonment may be imposed, such
person is released pursuant to subsection (b) of section 54-63c, subsection
(c) of section 54-63d or subsection (c) of section 54-64a and intentionally
violates one or more of the imposed conditions of release.’’
All references to § 53a-222a in this opinion are to the 2011 revision of
the statute.
4
At oral argument on the motion for summary judgment, the plaintiff
stated that she ‘‘[did not] contest that the warrant on its face establishes
probable cause’’ but contended that the defendant submitted it in ‘‘reckless
disregard of the truth . . . .’’
5
The plaintiff argues that a December 24, 2018 affidavit of Michelle
Kingsbury provides a ‘‘more accurate’’ version of Day’s statement. The plain-
tiff describes the Kingsbury affidavit as ‘‘literally the only evidence against
the defendant which establishes what he knew before he submitted his
warrant which survived his spoliation purge.’’ In the affidavit, Kingsbury
avers that ‘‘Day also spoke to [the defendant] and stated that he witnessed
the events of August 9, 2012 and that [the plaintiff] was being instigated by
. . . Cooney but at no time did [the plaintiff] communicate with . . .
Cooney in any way.’’ The plaintiff highlights the distinction between the
arrest warrant affidavit stating that Day reported that the plaintiff ‘‘did not
instigate contact’’ with Cooney and Gromley and the Kingsbury recitation
of Day’s alleged statement that the plaintiff did not communicate with
Cooney and Gromley. We note, however that the arrest warrant affidavit
also included the statements of Cooney and Gromley, which both indicated
that Day stated that he was with the plaintiff at the time of the incident
and the plaintiff would not do ‘‘anything like this.’’
The defendant argues that Kingsbury’s recitation of Day’s alleged state-
ment is hearsay and, thus, is inadmissible. Assuming, without deciding,
that Kingsbury’s recitation of Day’s alleged statement was admissible, we
conclude that probable cause would remain with the insertion of the
Kingsbury version of Day’s statement in the arrest warrant affidavit and,
thus, the any dispute over the version of Day’s statement was not material.
See Reese v. Garcia, 115 F. Supp. 2d 284, 291 (D. Conn. 2000) (‘‘[T]he first
step in assessing the materiality of such omissions is to correct the allegedly
defective affidavit by inserting the information withheld from the Superior
Court Judge who issued the arrest warrant. . . . The second step is . . . [to
determine] whether as a matter of law [the corrected affidavit] did or did
not support probable cause.’’ (Citation omitted; internal quotation marks
omitted.)).
6
The defendant directs this court to the plaintiff’s representations during
a December 9, 2019 hearing on her request to amend her complaint, during
which she stated that she was not amending her complaint to add a new
cause of action and that the cause of action was ‘‘still malicious prosecution,
prosecution without probable cause.’’
7
Accordingly, we need not reach the defendant’s alternative ground for
affirmance regarding judicial estoppel.
8
Section 8-3 of the Connecticut Code of Evidence provides in relevant part:
‘‘The following are not excluded by the hearsay rule . . . (4) A statement
of the declarant’s then existing mental or emotional condition, including a
statement indicating a present intention to do a particular act in the immedi-
ate future, provided that the statement is a natural expression of the condi-
tion and is not a statement of memory or belief to prove the fact remembered
or believed. . . .’’
9
General Statutes § 52-180 (a) provides: ‘‘Any writing or record, whether
in the form of an entry in a book or otherwise, made as a memorandum or
record of any act, transaction, occurrence or event, shall be admissible as
evidence of the act, transaction, occurrence or event, if the trial judge finds
that it was made in the regular course of any business, and that it was the
regular course of the business to make the writing or record at the time
of the act, transaction, occurrence or event or within a reasonable time
thereafter.’’