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Kanderskaya v. Kelly

United States District Court, S.D. New York

April 9, 2014

IRINA KANDERSKAYA, Plaintiff,
v.
THE CITY OF NEW YORK, NEW YORK POLICE COMMISSIONER RAYMOND KELLY, 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, and NEW YORK CITY POLICE OFFICER JOHN P. MOGULA, in his official and individual capacities, Defendants

Page 432

For Irina Kanderskaya, Plaintiff: Garry Pogil, Law Office of Garry Pogil, New York, NY.

For The City of New York, Commissioner Raymond Kelly, NYC, in his official capacity, P.O. Ronald Pereira, NYC, in his official and individual capacity, Police Officer Zayda Natal, NYC, in his official and individual capacity, P.O. John P. Mogula, NYC, in his official and individual capacity, Defendants: Wesley Eugene Bauman, LEAD ATTORNEY, New York City Law Department, New York, NY.

Page 433

ORDER AND OPINION GRANTING MOTION FOR JUDGMENT ON THE PLEADINGS

ALVIN K. HELLERSTEIN, United States District Judge.

Plaintiff Irina Kanderskaya complains that she was arrested by New York City Police Department (" NYPD" ) Officers three times without probable cause. Each of these arrests was prompted by phone calls that Khaled Salem, Kanderskaya's former husband, made to the NYPD. Salem falsely told the NYPD that Kanderskaya had threatened to injure him. Kanderskaya contends that each time she was arrested, she explained to the NYPD officers who arrested her that she was innocent and that it was, in fact, her husband who had abused her, but that she was arrested as a result of the NYPD's policy of automatically arresting individuals who have been accused of domestic violence.

Kanderskaya asserts claims pursuant to 42 U.S.C. § 1983 and New York State law against the individual police officers who arrested her, Defendants Ronald Pereira, Zayda Natal, and John P. Mogula. She also asserts § 1983 claims against New York City (the " City" ) and the NYPD's former-commissioner, Raymond Kelly, based on allegations that the NYPD promulgated unlawful policies and practices regarding arrests in purported domestic violence cases.

Before me is the Defendants' motion for judgment on the pleadings, pursuant to Federal Rule of Civil Procedure 12(c). For the following reasons, their motion is granted and the complaint is dismissed.

STANDARD OF REVIEW

Rule 12(c) motions for judgment on the pleadings are governed by the same standard as motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). See Graziano v. Pataki, 689 F.3d 110, 114 (2d Cir. 2012). Thus, I consider only " the complaint, the answer, any written documents attached to them, and any matter of which the court can take judicial notice for the factual background of the case." Roberts v. Babkiewicz, 582 F.3d 418, 419 (2d Cir. 2009). In this case, I have taken notice of the police reports attached to Defendants'

Page 434

Answer, for the fact that the reports existed, but not for the truth of the facts set forth in the reports. See Vasquez v. City of New York, 99 CIV. 4606 (DC), 2000 WL 869492, at *1 n. I (S.D.N.Y. June 29, 2000) (considering police reports); Wims v. New York City Police Dep't, 10 CIV. 6128 PKC, 2011 WL 2946369, at *2 (S.D.N.Y. July 20, 2011) (same). The police reports are consistent with the allegations in Kanderskaya's complaint.

I accept as true the facts alleged in the complaint and draw all reasonable inferences in the plaintiff's favor. Johnson v. Rowley, 569 F.3d 40, 43 (2d Cir. 2009). To survive a Rule 12(c) motion, Kanderskaya's " complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id. at 44 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)).

BACKGROUND

With the standard of review in mind, the following is a summary of the pertinent facts of record, with the facts alleged in Kanderskaya's complaint accepted as true and with all reasonable inferences drawn in her favor.

On July 4, 2012, Salem telephoned the NYPD and (falsely) reported that his wife, Kandeskaya, had made numerous phone calls threatening to have him killed unless he halted the divorce proceedings against her. Answer, Ex. A; Complaint at ¶ 18.

On July 9, 2012, Kanderskaya went to the 68th police precinct in Brooklyn. Complaint at ¶ 18. There, she was met by Detective Pereira who told Kanderskaya about her husband's complaint. Id. Kanderskaya denied making any threatening phone calls and tried to convince Pereira that in fact she wanted the divorce. Id. In order to persuade Pereira, Kanderskaya showed him text messages indicating that it was Kanderskaya who wanted the divorce. Id. She also told Pereira that she had arranged to live away from her regular home, and identified third parties who would confirm this. Id. After hearing from Kanderskaya, Pereira acknowledged that she was emotionally abused by her husband and had in fact tried to escape from him. Id. ...


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