14-1335-cv
Kanderskaya 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 Courthouse, 40 Foley Square, in the City of New York, on the 26th day of
January, two thousand fifteen.

Present:
         ROBERT A. KATZMANN,
                     Chief Judge,
         RAYMOND J. LOHIER, JR.,
         CHRISTOPHER F. DRONEY,
                     Circuit Judges.
________________________________________________

IRINA KANDERSKAYA,

           Plaintiff-Appellant,

                  v.                                            No. 14-1335-cv

THE CITY OF NEW YORK; NEW YORK CITY POLICE
COMMISSIONER WILLIAM J. BRATTON*, in his official
capacity; NEW YORK CITY POLICE OFFICER RONALD
PEREIRA, in his official and individual capacity; NEW
YORK CITY POLICE OFFICER ZAYDA NATAL, in
her official and individual capacity; NEW YORK CITY
POLICE OFFICER JOHN P. MOGULA, in his official
and individual capacity,

         Defendants-Appellees.
________________________________________________


       *
         Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Police Commissioner
William J. Bratton is automatically substituted for former Police Commissioner Raymond Kelly
as appellee in this case. The Clerk of the Court is directed to amend the caption to read as shown
above.
For Plaintiff-Appellant:                  GARRY POGIL, New York, NY.

For Defendants-Appellees:                 DEVIN SLACK, Of Counsel (Richard Dearing, on the
                                          brief), for Zachary W. Carter, Corporation Counsel of
                                          the City of New York, New York, NY.


       Appeal from the United States District Court for the Southern District of New York
(Hellerstein, J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the order of the district court is AFFIRMED.

       Plaintiff-Appellant Irina Kanderskaya appeals from a final judgment entered on April 10,

2014, by the U.S. District Court for the Southern District of New York (Hellerstein, J.). The

order granted defendants’ motion for judgment on the pleadings under Rule 12(c) of the Federal

Rules of Civil Procedure. We assume the parties’ familiarity with the underlying facts,

procedural history, and issues presented for review.

       We review Rule 12(c) motions for judgment on the pleadings de novo, accepting as true

the facts plausibly alleged in the complaint and drawing all reasonable inferences in the

plaintiff’s favor. See Graziano v. Pataki, 689 F.3d 110, 114 (2d Cir. 2012) (per curiam).

       On appeal, Kanderskaya argues that the district court erred in dismissing her claims

under 42 U.S.C. § 1983 for false arrest and malicious prosecution. However, “‘[i]t is well-

established that a law enforcement official has probable cause to arrest if he received his

information from some person, normally the putative victim or eyewitness,’ unless the

circumstances raise doubt as to the person’s veracity.” Panetta v. Crowley, 460 F.3d 388, 395

(2d Cir. 2006) (quoting Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000)); see also Singer

v. Fulton Cnty. Sheriff, 63 F.3d 110, 119 (2d Cir. 1995) (“An arresting officer advised of a crime


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by a person who claims to be the victim, and who has signed a complaint or information

charging someone with the crime, has probable cause to effect an arrest absent circumstances

that raise doubts as to the victim’s veracity.”). Here, the complaint states that all three police

officers arrested Kanderskaya in reliance on information from the putative victim, her husband.

It does not allege that the officers had sufficient reason to doubt his veracity that would vitiate

the probable cause provided by his complaint. At the time of the first arrest, the officers had only

Kanderskaya’s word against her husband’s, and they were entitled to credit her husband’s

account. See Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997) (“Although [the

officer] would have been entitled to believe [the arrestee’s] version of events rather than [the

putative victim’s], he was not required to do so.”). That Kanderskaya and her husband were

experiencing marital discord did not require the officers to discount her husband’s account, nor

did Kanderskaya’s protestations of innocence. See id. (“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.”). Moreover, by the second

and third arrests, the arresting officers also knew that there was an order of protection against

Kanderskaya that had been entered by a New York State Supreme Court justice, ordering

Kanderskaya to stay away from her husband and refrain from communicating with or harassing

him. Under these circumstances, the officers had no reason to doubt her husband’s veracity and

therefore had probable cause to arrest Kanderskaya.

       In the context of false arrest, “the existence of probable cause is an absolute defense . . .

and affords the arresting officer qualified immunity from litigation.” Caldarola v. Calabrese,

298 F.3d 156, 161 (2d Cir. 2002). In the context of malicious prosecution, probable cause is also


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a complete defense. Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003). Here, Plaintiff

alleges no intervening facts that would alter the probable cause analysis for the malicious

prosecution claim. Cf. Lowth v. Town of Cheektowaga, 82 F.3d 563, 571 (2d Cir. 1996),

amended (May 21, 1996). The district court therefore did not err in dismissing the false arrest

and malicious prosecution claims.

        Kanderskaya also argues that the district court erred in dismissing what she characterizes

as a Section 1983 claim for intentional and negligent infliction of emotional distress. However,

while a court may award damages for emotional suffering in a Section 1983 case, such damages

are awarded only when the plaintiff “suffered distress because of the denial of procedural due

process itself.” Miner v. City of Glens Falls, 999 F.2d 655, 662 (2d Cir. 1993) (internal quotation

marks omitted). As there was no finding of an underlying deprivation of a federal right, the

district court also did not err in dismissing this claim.

        Next, Kanderskaya contends that the district court erred in dismissing her Monell claim

for municipal liability. However, because there is no underlying deprivation of a federal right

here, there is correspondingly no Monell claim. See Monell v. Dep’t of Soc. Servs. of City of

N.Y., 436 U.S. 658, 690-91 (1978).

        Finally, Kanderskaya argues that the district court abused its discretion in declining to

exercise supplemental jurisdiction over her state law claims. However, “in the usual case,” where

“all federal-law claims are eliminated before trial, the balance of factors will point toward

declining to exercise jurisdiction over the remaining state-law claims.” Kolari v. New York-

Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (internal quotation marks and alterations

omitted). The district court therefore did not abuse its discretion in declining to exercise

supplemental jurisdiction.


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       We have considered all of the Appellant’s remaining arguments and find them to be

without merit. Accordingly, for the foregoing reasons, the judgment of the district court is

AFFIRMED.

                                          FOR THE COURT:
                                          CATHERINE O’HAGAN WOLFE, CLERK




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