11-5460-cv
Yan v. City of New York
                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 1st day of February, two thousand thirteen.

PRESENT: PIERRE N. LEVAL,
         REENA RAGGI,
         DEBRA ANN LIVINGSTON,
                    Circuit Judges.

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SUNAN YAN, SHA LIU,
                                 Plaintiffs-Appellants,

                          v.                                             No. 11-5460-cv

CITY OF NEW YORK, RAYMOND KELLY,
Commissioner for the New York City Police Department,
DEPUTY INSPECTOR KEITH GREEN, Commanding
Officer of NYPD 104th Precinct, NEW YORK CITY
POLICE DEPARTMENT, EDWARD ZUNO, individually
and in his official capacity as a New York City Police
Officer, SERGEANT EDMUND SHERIDAN, a/k/a
Sheridan, OFFICER JANE DOE, individually and in official
capacity as a New York City Police Officer, Jane Doe being
a fictitious name, the true name is not known at this time,
MASSIMO CAPPELLA, JOSEPH CAPPELLA,
                                 Defendants-Appellees.
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FOR APPELLANTS:             Sunan Yan, Sha Liu, pro se, Sunnyside, New York.

FOR APPELLEES:              Larry A. Sonnenshein, Kathy H. Chang, of Counsel, for Michael
                            A. Cardozo, Corporation Counsel of the City of New York, New
                            York, New York.

       Appeal from a judgment of the United States District Court for the Eastern District

of New York (Carol B. Amon, Chief Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiffs Sunan Yan and Sha Liu appeal pro se from an award of summary judgment

on their false arrest and malicious prosecution claims, see 42 U.S.C. § 1983, against the City

of New York and various named and unnamed police employees and other persons.1 We

review an award of summary judgment de novo and will uphold the award only if the record

evidence, viewed in the light most favorable to the non-moving party, reveals “no genuine

dispute as to any material fact” and the movant’s entitlement to judgment as a matter of law.

Fed. R. Civ. P. 56(a); see Ramos v. Baldor Specialty Foods, Inc., 687 F.3d 554, 558 (2d Cir.

2012). We assume the parties’ familiarity with the underlying facts and record of prior

proceedings, which we reference only as necessary to explain our decision to affirm for

substantially the reasons given in the district court’s comprehensive and well-reasoned

Memorandum and Order.


       1
         Because plaintiffs do not challenge the district court’s rejection of their malicious
prosecution claim in their filings on appeal, we deem that claim abandoned. See LoSacco
v. City of Middletown, 71 F.3d 88, 92–93 (2d Cir. 1995).

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       An independent review of the record and pertinent case law reveals that the district

court properly awarded summary judgment in favor of defendants on plaintiffs’ Fourth

Amendment false arrest claim. As the district court recognized, in determining that there was

probable cause for Yan’s arrest, defendants Sergeant Sheridan and Officer Zuno were

entitled to credit the statements made by the purported crime victim and his brother,

defendants Massimo and Joseph Cappella, and were not required to accept or investigate

Yan’s and Liu’s contrary statements. See Panetta v. Crowley, 460 F.3d 388, 395–96 (2d Cir.

2006) (“[A]n officer’s failure to investigate an arrestee’s protestations of innocence generally

does not vitiate probable cause.”); Jaegly v. Couch, 439 F.3d 149, 153 (2d Cir. 2006)

(holding that officer need not “explore and eliminate every plausible claim of innocence

before” probable cause will support arrest). Moreover, the record demonstrates that the

Cappellas’ account of Yan’s altercation with Massimo Cappella was corroborated by at least

one witness, Vincenza Cimino. While plaintiffs cite to a prior dispute that they had with

Cimino in order to challenge her impartiality, the probable cause inquiry focuses on the

knowledge of the arresting officers, and the district court correctly noted that there was no

evidence that Sergeant Sheridan or Officer Zuno had any awareness of such a dispute when

they arrested Yan. See Lowth v. Town of Cheektowaga, 82 F.3d 563, 569 (2d Cir. 1996)

(“Courts evaluating probable cause for an arrest must consider those facts available to the

officer at the time of the arrest and immediately before it.”).




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       Finally, we decline to consider medical evidence that plaintiffs offer for the first time

on appeal, on the ground that it is not part of the record. See Loria v. Gorman, 306 F.3d

1271, 1280 n.2 (2d Cir. 2002) (“Ordinarily, material not included in the record on appeal will

not be considered.”).

       We have considered plaintiffs’ remaining arguments and conclude that they are

without merit. The judgment of the district court is AFFIRMED.

                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court




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