Baron v. Lissade

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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YUNETTA BARON,

Plaintiff,

MEMORANDUM & ORDER

- against - 19-CV-6256 (RPK) (SMG)

PATRICIA LISSADE, LATICA LAMAR, IRINA

KLADOVA, LAURA FLYER, RAYMOND KARLIN,

CARLOS VELEZ, MICHAEL SILVERMAN, JANET

KIM, ANDREW SONPON, SUDARSANA

SRINIVASAN, and THE CITY OF NEW YORK,

Defendants.

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RACHEL P. KOVNER, United States District Judge:

Plaintiff Yunetta Baron, who was prosecuted by the New York City Commission on

Human Rights (the “Commission”) for housing discrimination, has sued eleven parties that

allegedly participated in her prosecution. Plaintiff brought claims against seven current or former

Commission attorneys and the City of New York for (i) malicious prosecution under 42

U.S.C. § 1983, (ii) malicious abuse of process under Section 1983 and New York law,

and (iii) violation of the Fourteenth Amendment right to a fair trial under Section 1983. Plaintiff

also alleges that Patricia Lissade, Irena Kladova, and Laticia Lamar (collectively, the “Alleged

Conspirators”), conspired to falsely report plaintiff to the Commission. Corporation Counsel and

Kladova each filed motions to dismiss. I previously granted Corporation Counsel’s motion to

dismiss all claims against the City and the malicious prosecution claim. I requested supplemental

briefing from the parties regarding qualified immunity as to the remaining federal claims. For the

reasons that follow, I now grant Corporation Counsel’s motion to dismiss with respect to all

remaining federal claims based on qualified and absolute immunity. I decline to retain jurisdiction

over the remaining state law claims. And I deny Kladova’s motion to dismiss as moot.

BACKGROUND

I. Factual Background

The following factual allegations are taken from the complaint. For the purposes of the

pending motions to dismiss, I assume all factual allegations in the complaint are true.

A. Patricia Lissade’s Attempt to Rent Plaintiff’s Apartment

In 2013, Patricia Lissade found an advertisement for plaintiff’s apartment on Craiglist.

Compl. ¶ 11. The advertisement stated that the apartment was available for rent. Id. ¶ 12. But the

advertisement also cautioned that potential renters would need to be approved by the co-op board

for plaintiff’s building (the “Co-op Board”). Ibid.

Lissade asked plaintiff about renting her apartment. Id. ¶ 13. Although plaintiff was not

available to show Lissade the apartment, she arranged for a family member to give Lissade a tour.

Id. ¶ 15. After viewing the apartment, Lissade called plaintiff to express interest in renting the

property. Id. ¶ 16. Plaintiff informed Lissade that she would be able to do so only if she was

approved by the Co-op Board. Id. ¶ 17. That approval process, plaintiff explained, would involve

a credit check and a screening for financial suitability. Ibid. When plaintiff shared this

information, Lissade knew that she could never pass the Co-op Board’s approval process because

of her financial history. Id. ¶ 18.

Soon after Lissade visited the apartment, plaintiff was contacted by her brother. Id. ¶ 20.

Plaintiff’s brother needed a place to stay because he was leaving his marital residence. Ibid.

Plaintiff conferred with the Co-op Board about whether her brother could move into the apartment.

Id. ¶ 21. The Co-op Board told her that she did not need to seek approval for a family member to

live in the apartment. Id. ¶ 22. Plaintiff’s brother ultimately moved into the apartment without

submitting a rental application to the Co-op Board. Id. ¶ 23.

Plaintiff contacted Lissade to let her know that the apartment was no longer available.

Id. ¶ 24. Plaintiff explained to Lissade that a relative was moving into the apartment. Ibid. At the

time of this conversation, plaintiff had never met Lissade in person. Id. ¶ 25. And plaintiff did

not know that Lissade was Black and Haitian. Ibid.

B. The Alleged Conspiracy

Lissade conspired with her friend Laticia Lamar to fabricate a claim that plaintiff’s

decision was discriminatory. Id. ¶ 27. The plan was to recruit a white person to inquire about

renting plaintiff’s apartment and to convince plaintiff to show that white person the apartment.

Id. ¶¶ 27-28. Once the white person “[got] access to the apartment and request[ed] an application,

Lissade would bring a discrimination claim against plaintiff.” Id. ¶ 28. Lamar asked her friend

Irena Kladova, who lived in Maine, to participate in the scheme, and she agreed. Id. ¶¶ 30, 32.

Plaintiff did not take the bait. Id. ¶¶ 33-35. In the days that followed, plaintiff received

calls from people who were purportedly interested in renting the apartment—none of whom

identified themselves as Kladova. Id. ¶ 34. But plaintiff never gave rental applications to any of

these callers. Ibid.

Nevertheless, Lissade, Lamar, and Kladova, decided to proceed with a discrimination claim

against plaintiff. Id. ¶ 36. Lissade reported to the Commission that plaintiff had declined her

rental application because Lissade was Haitian and that Lamar and Kladova could corroborate this

account. Id. ¶¶ 41-42. Furthermore, Lissade falsely claimed that plaintiff spoke with Kladova and

offered to show Kladova the apartment—even though plaintiff had previously told Lissade the

apartment was unavailable. Id. ¶ 44.

C. The Commission’s Investigation of Plaintiff for Housing Discrimination

Two attorneys for the Commission, Laura Flyer and Raymond Karlin, conducted the initial

investigation into the claims against plaintiff. Id. ¶¶ 84-96, 99-103. Flyer interviewed Lissade,

drafted the complaint against plaintiff, and obtained an unsigned affidavit that was purportedly

from Kladova. Id. ¶¶ 86, 90-91. Separately, both Flyer and Karlin interviewed a woman they

believed to be Kladova. Id. ¶¶ 94, 100. During those interviews, the attorneys noticed

discrepancies between the respective accounts given by Lissade and Kladova. Id. ¶ 49. For

example, Flyer struggled to discern whether Kladova had a Russian accent, even though Lissade

had claimed Kladova possessed a thick Russian accent. Id. ¶¶ 89, 95. Karlin also documented

that Kladova did not recall ever being promised a rental application by plaintiff—directly

contradicting what Lissade had told the Commission. Id. ¶ 101.1 And Karlin observed that

Kladova recalled a conversation about a two-bedroom apartment, even though the apartment was

a studio. Id. ¶ 112.

Lissade was dissatisfied with the Commission’s work. Id. ¶ 97. She complained about

Flyer to Carlos Velez, one of the supervising attorneys at the Commission. Ibid. She then

complained about both Flyer and Velez to Deputy Commissioner Clifford Mulqueen. Id. ¶ 98.

Eventually, Velez, Flyer, and Karlin issued a finding of probable cause against plaintiff. Id. ¶ 104.

According to plaintiff, the finding of probable cause was a “sham.” Id. ¶ 108. Plaintiff asserts the

Commission attorneys issued this finding “solely to forestall further complaints” about their job

performance to high ranking officials at the Commission. Id. ¶¶ 104, 107, 109.

1 Elsewhere in the complaint, plaintiff alleges that Kladova did tell the Commission that plaintiff had offered to

show her the apartment and had given her a rental application. Id. ¶ 37.

D. The Commission’s Prosecution of Plaintiff

After the issuance of a probable cause finding, all of the defendant Commission attorneys

employed improper discovery tactics to forestall further complaints from Lissade. For example,

the Commission attorneys:

• Concealed Karlin’s notes documenting inconsistencies in Kladova’s and Lissade’s

respective accounts, id. ¶¶ 113-14, 128;

• Refused to acknowledge or investigate evidence that would refute Lissade’s claims,

see, e.g., id. ¶¶ 118, 127, 129;

• Served a subpoena on plaintiff for records, even though the subpoena was not

signed by a judge as was required, id. ¶ 141; and

• Sought emotional damages from plaintiff despite knowing Lissade’s medical

records undermined any case for emotional damages, id. ¶ 152; see id. ¶¶ 149-151.

The Commission’s discrimination case against plaintiff went to trial in November 2016.

Id. ¶¶ 159-60. At the trial, Commission lawyers allegedly acted inappropriately. For example,

both Karlin and Flyer testified at the trial and, in the process, committed perjury and violated

ethical rules. See, e.g., id. ¶¶ 111, 116, 161, 193-94. The trial concluded “with a recommendation

by an administrative law judge that the case against plaintiff be dismissed on the merits.” Id. ¶ 67.

The administrative law judge found (among other things) that Lamar and Lissade were not

credible, that it was likely that Lissade had promised to compensate Lamar for her assistance in

the prosecution of plaintiff, and that plaintiff had not engaged in any discrimination against

Lissade. Ibid. Several months after trial, the Chair of the Commission dismissed the complaint

against plaintiff. Id. ¶ 70.

II. Procedural Background

Plaintiff filed this lawsuit raising three claims. The first count asserted a claim against the

Alleged Conspirators for common-law malicious abuse of process. Id. ¶¶ 9-79. The second and

third counts asserted claims against the City Defendants for (i) malicious prosecution under 42

U.S.C. § 1983, (ii) malicious abuse of process under Section 1983 and New York law, and (iii)

violation of the Fourteenth Amendment right to a fair trial under Section 1983.2 Compl. ¶¶ 80-

194. Both Corporation Counsel and Kladova filed motions to dismiss.

On April 6, 2021, I granted Corporation Counsel’s motion as to all claims against the City

and as to the malicious prosecution claim. See Order dated Apr. 6, 2021 (Dkt. #39). Because the

parties’ briefs contained limited discussion of how the doctrine of qualified immunity applies to

this case, I ordered supplemental briefing on whether qualified immunity forecloses plaintiff’s

claims for violation of her right to a fair trial and for malicious prosecution. Id. at 3-4. The parties

filed letters in response. See Defs.’ Letter dated Apr. 20, 2021 (Dkt. #40); Pl.’s Corrected Letter

dated Apr. 28, 2021 (Dkt. #43).

STANDARD OF REVIEW

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint

must “state[s] a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). The facial “plausibility standard is not akin to a probability requirement,” but it requires

a plaintiff to allege sufficient facts to allow “the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ibid. (internal quotation marks omitted) (citing

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “A well-pleaded complaint may proceed

even if it strikes a savvy judge that actual proof [of the facts alleged] is improbable, and that a

recovery is very remote and unlikely.” Twombly, 550 U.S. at 556 (internal quotation marks and

citation omitted).

2 Count Three is purportedly alleged against “all defendants.” Compl. ¶ 176. But the complaint later clarifies

explicitly that the phrase “all of the defendants” refers solely to the City Defendants. See id. ¶ 180. Plaintiff

confirms this understanding of the complaint in her opposition to Kladova’s motion to dismiss. See Pl.’s Opp’n

to Kladova’s Mot. to Dismiss at 12 (Dkt. #37).

When analyzing whether a complaint should be dismissed, a court must generally constrain

its review to the complaint itself, documents attached to the complaint as exhibits, documents

incorporated by reference in the complaint, and certain documents that are relied on so heavily in

the complaint as to be integral to the document. DiFolco v. MSNBC Cable, LLC, 622 F.3d 104,

111 (2d Cir. 2010). The court must also accept all facts alleged in the complaint as true. See Iqbal,

556 U.S. at 678. Even so, the court, is not obligated to adopt “mere conclusory statements” or

“[t]hreadbare recitals of the elements of a cause of action” that are not “supported by factual

allegations.” Id. at 678-79.

DISCUSSION

Plaintiff’s remaining Section 1983 claims are dismissed because, as explained below, they

are barred by qualified and absolute immunity. Having dismissed plaintiff’s remaining federal

causes of action, I decline to exercise supplemental jurisdiction over plaintiff’s state law claims.

I. The Remaining Section 1983 Claims Against the Commission Attorneys Are

Dismissed

Neither of plaintiff’s remaining Section 1983 claims against the Commission attorneys are

viable. First, qualified immunity bars plaintiff’s claim that the Commission attorneys violated her

right to a fair trial. Second, qualified and absolute immunity bar plaintiff’s claim under Section

1983 for malicious abuse of process.

A. Fourteenth Amendment Right to a Fair Trial

Qualified immunity bars plaintiff’s claim against the Commission attorneys for violating

plaintiff’s constitutional right to a fair trial. See Compl. ¶¶ 192-93. “Qualified immunity attaches

when an official’s conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” White v. Pauly, 137 S. Ct. 548, 551 (2017) (per

curiam) (internal quotation marks and citation omitted). While qualified immunity “does not

require a case directly on point for a right to be clearly established, existing precedent must have

placed the statutory or constitutional question beyond debate.” Kisela v. Hughes, 138 S. Ct. 1148,

1152 (2018) (per curiam) (citation omitted). Courts may “grant qualified immunity on the ground

that a purported right was not ‘clearly established’ by prior case law, without resolving the often

more difficult question whether the purported right exists at all.” Booker v. Graham, 974 F.3d

101, 106 (2d Cir. 2020) (citation omitted).

Here, plaintiff’s fair-trial claim falters because she has not alleged a violation of a clearly

established constitutional right. The Second Circuit has recognized a Fourteenth Amendment right

to a fair criminal trial, free of misconduct such as fabrication of evidence. See, e.g., Zahrey v.

Coffey, 221 F.3d 342, 355 (2d Cir. 2000); see Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130

(2d Cir. 1997). It has found such claims actionable because they involve the deprivation of liberty.

See, e.g., Zahrey, 221 F.3d at 355; Jovanovic v. City of New York, 486 F. App’x 149, 152 (2d Cir.

2012) (listing elements of a fair trial claim, including that “the plaintiff suffer[ed] a deprivation of

liberty”). Thus, in Zahrey v. Coffey, 221 F.3d 342, 355 (2d Cir. 2000) (internal quotation marks

omitted), the court of appeals cautioned that there is no freestanding “constitutional right not to

have a prosecutor manufacture evidence,” because “the manufacture of false evidence, in and of

itself . . . does not impair anyone’s liberty, and therefore does not impair anyone’s constitutional

right.” The plaintiff there stated a fair-trial claim, the court explained, because he had gone on to

allege “the deprivation of his liberty” from the fabrication. Ibid.; see id. at 349, 355.

In contrast, the Second Circuit “has never recognized a constitutional right to be free from

fabrication of evidence outside of the criminal context.” Rolon v. Henneman, 443 F. Supp. 2d 532,

538 (S.D.N.Y. 2006), aff’d, 517 F.3d 140 (2d Cir. 2008). Indeed, several courts in this circuit have

rejected fair-trial claims arising out of civil or administrative proceedings, reasoning that “a denial

of the right to a fair trial claim, as it is conceived of in the Second Circuit, is meant to redress

unfairness in criminal proceedings that may go before a jury, and not civil bench trials.” Zappin

v. Cooper, No. 16 Civ. 5985 (KPF), 2018 WL 2305562, at *3 (S.D.N.Y. May 18, 2018); see Rolon,

443 F. Supp. 2d at 538-540.

The only case that plaintiff identifies recognizing a fair-trial right in a civil proceeding is

an out-of-circuit decision involving juvenile dependency proceedings: Hardwick v. County of

Orange, 844 F.3d 1112 (9th Cir. 2017). See Pl.’s Corrected Letter at 2-4. Out-of-circuit caselaw

can be relevant “to the qualified immunity analysis,” but “only where the cases clearly foreshadow

a particular ruling on the issue” at hand. Francis v. Fiacco, 942 F.3d 126, 150 (2d Cir. 2019)

(internal quotation marks and citation omitted). That standard is not met here. Hardwick reasoned

that a parent had stated a clearly established Section 1983 claim based on use of perjured testimony

and fabricated evidence in a juvenile dependency proceeding because such misconduct would

violate a child’s clearly established “Fourth and Fourteenth Amendment constitutional rights to

her familial relationship with her mother.” Hardwick, 844 F.3d at 1114, 1117. The court relied

on what it described as a Fourteenth Amendment liberty interest of parents and children not to be

“separated by the state without due process of law except in an emergency.” Id. at 1116. That

out-of-circuit ruling is of limited relevance here, because plaintiff cannot suggest a comparable

family liberty interest was implicated by the Office of Administrative Trials and Hearings

(“OATH”) proceeding regarding housing discrimination. Given this state of the law, a right to be

free from fabrication of evidence and similar misconduct in a civil or administrative trial was not

clearly established at the time of the events in this case. Cf. Zahrey, 221 F.3d at 356-357 (finding

the “right not to be deprived of liberty as a result of [a] government officer’s fabrication of

evidence” to be clearly established based on cases recognizing such a right) (emphasis omitted).

Plaintiff’s arguments to the contrary do not persuade. Plaintiff suggests that the OATH

proceeding “threaten[ed her] liberty because . . . failure to comply with a mandate of OATH can

result in imprisonment.” Pl.’s Corrected Letter at 2 n.2. But while New York makes it a crime

punishable by imprisonment to interfere with the Commission or to violate a Commission order,

see N.Y.C. Admin. Code § 8-129, plaintiff cites no authority to suggest that the Commission could

have imprisoned her based on its determinations regarding housing discrimination at the OATH

proceeding.

Plaintiff finally argues that the alleged conduct here was so “inherently and obviously

unlawful” that “there does not need to be a case on point for a plaintiff to . . . overcome qualified

immunity.” Pl.’s Corrected Letter at 4. The Supreme Court has indeed recognized that “officials

can still be on notice that their conduct violates established law even in novel factual

circumstances.” Hope v. Pelzer, 536 U.S. 730, 741 (2002); see Taylor v. Riojas, 141 S. Ct. 52, 53-

54 (2020) (per curiam). But as I explain above, under Second Circuit law, defendants’ alleged

conduct was anything but an inherent and obvious violation of the Fourteenth Amendment right

to a fair trial. Decisions of the court of appeals have suggested that such a claim requires

deprivation of a liberty interest that is lacking here, and decisions of district courts have squarely

held that such claims are not viable in civil cases. Because there is no clearly established law on

this circuit that fabrication of evidence during an administrative bench trial ever violates the

Constitution, defendants are entitled to qualified immunity. Plaintiff’s claim for violation of her

right to a fair trial is dismissed.

B. Malicious Abuse of Process

Plaintiff asserts claims against some of the Commission attorneys for malicious abuse of

process in violation of Section 1983. See Compl. ¶¶ 174-94. The elements of a malicious-abuse-

of-process claim are defined by state law. See Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994);

Tuccillo v. Cnty. of Nassau, 723 F. App’x 81, 82 (2d Cir. 2018). Under New York law, a plaintiff

must plead that the defendant “(1) employ[ed] regularly issued legal process to compel

performance or forbearance of some act (2) with intent to do harm without excuse of justification,

and (3) in order to obtain a collateral objective that is outside the legitimate ends of the process.”

Hernandez v. United States, 939 F.3d 191, 204 (2d Cir. 2019). Here, the “regularly issued legal

process” that plaintiff invokes is a “notice of probable cause,” Compl. ¶ 185, or “finding of

probable cause,” which triggered plaintiff’s “prosecution [by] OATH” and administrative trial, id.

¶ 176. As conduct constituting the improper employment of such process, plaintiff alleges that

Commission attorneys (i) conducted “a sham investigation of Lissade’s claims” before the

issuance of the process, id. ¶ 179; (ii) “issued [the] finding of probable cause” despite “knowing

that no such probable cause existed,” id. ¶ 176; see id. ¶ 177, and then (iii) sought to bolster the

probable-cause finding and prosecution by “concealing exculpatory and impeaching evidence” and

by “concealing the fact [that] they issued illegal subpoenas,” id. ¶ 178; see id. ¶ 184. As explained

below, plaintiff cannot premise liability for malicious abuse of process on any of this conduct.

1. The Commission Attorneys Are Not Liable for Conduct that Occurred

Prior to the Finding of Probable Cause

Plaintiff cannot sustain a Section 1983 claim for malicious abuse of process for

Commission attorneys’ alleged improper investigation before issuing a finding of probable cause.

See Compl. ¶ 179. In construing the element of malicious abuse of process requiring that a

defendant have “employ[ed] regularly issued legal process,” Hernandez, 939 F.3d at 204, the

Second Circuit has emphasized that the “gist of abuse of process is the improper use of process

after it is regularly issued,” Cook, 41 F.3d at 80 (emphasis added); see Okudinani v. Rose, 779 F.

App’x 768, 773 (2d Cir. 2019) (same). Courts accordingly dismiss claims premised on conduct

that occurred before the issuance of process. See, e.g., Gilman v. Marsh & McLennan Cos., 654

F. App’x 16, 16 (2d Cir. 2016) (affirming dismissal of abuse-of-process claims because they were

based on events that “unquestionably came before the process in question”); Dowd v. DeMarco,

314 F. Supp. 3d 576, 585 (S.D.N.Y. 2018). Plaintiff has therefore failed to state a claim of

malicious abuse of process against any of the Commission attorneys for their alleged improper

investigation prior to the issuance of a probable cause finding.

2. Qualified Immunity Prevents the Commission Attorneys from Being

Held Liable for the Issuance of a Probable Cause Finding

Qualified immunity bars plaintiff from suing Commission attorneys for malicious abuse of

process based on their issuance of a probable cause finding against her. See Compl. ¶¶ 176-177.

As explained above, qualified immunity attaches “when an official’s conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person would have

known.” White, 137 S. Ct. at 551 (internal quotation marks and citation omitted). At the time of

the events in this case, there was—at minimum—uncertainty about whether a malicious abuse of

process claim under Section 1983 could be premised on the issuance of process itself. As plaintiff

notes, some courts in this Circuit had concluded that the issuance of process could support a claim

for malicious abuse of process. See Pl.’s Corrected Letter at 5, 5 n.5; cf. Manhattan Enter. Grp.

LLC v. Higgins, 816 F. App’x 512, 514 (2d Cir. 2020) (internal quotation marks and citation

omitted) (stating in an unpublished decision post-dating the events in this case that the New York

Court of Appeals has indicated that “nothing in its precedents would seem to preclude an abuse of

process claim based on the issuance of the process itself”). But others had reached the opposite

conclusion. See, e.g., Orellana v. Macy’s Retail Holdings, Inc., No. 17 Civ. 5192 (NRB), 2018

WL 3368716, at *16 n.19 (S.D.N.Y. July 10, 2018); Richardson v. N.Y.C. Health & Hosps. Corp.,

No. 05 Civ. 6278(RJS), 2009 WL 804096, at *16-17 (S.D.N.Y. Mar. 25, 2009). Because of the

uncertain status of the law, the Commission attorneys are entitled to qualified immunity against a

malicious abuse of process claim based on their issuance of a probable cause finding.

3. Absolute Immunity Prevents the Commission Attorneys from Being

Held Liable for Testimony

Insofar as plaintiff seeks to pursue a malicious abuse of process claim against Commission

attorneys for testifying against plaintiff at her administrative trial, those claims are barred by

absolute immunity. In the Section 1983 context, the Supreme Court has held that a “trial witness

has absolute immunity with respect to any claim based on the witness’ testimony.” Rehberg v.

Paulk, 566 U.S. 356, 367 (2012) (emphasis omitted). Trial witness immunity applies not merely

in judicial proceedings, but also in administrative proceedings that serve a judicial function. See,

e.g., Butz v. Economou, 438 U.S. 478, 512-13 (1978) (“We think that adjudication within a federal

administrative agency shares enough of the characteristics of the judicial process that those who

participate in such adjudication should also be immune from suits for damages.”); Diaz v. Soc.

Sec. Admin. Disability, No. 20-CV-1551 (LLS), 2020 WL 1503434, at *3 (S.D.N.Y. Mar. 27,

2020) (holding that witnesses in Social Security Administration proceedings were protected by

absolute immunity); Lewis v. City of New York, 18 F. Supp. 3d 229, 238 (E.D.N.Y. 2014) (holding

that defendant was absolutely immune for allegedly defaming plaintiff because the defendant had

been testifying as a witness at an administrative proceeding); Anghel v. N.Y. State Dep’t of Health,

947 F. Supp. 2d 284, 300 (E.D.N.Y. 2013) (holding that witnesses involved in medical license

revocation hearing were protected by absolute immunity because the hearing was “analogous to

judicial proceedings”), aff’d, 589 F. App’x 28 (2d Cir. 2015). Courts in this circuit have

recognized that an administrative trial before the Commission is the type of judicial proceeding at

which participants merit absolute immunities. See Rudow v. City of New York, 642 F. Supp. 1456,

1461 (S.D.N.Y. 1986) (holding that a Commission attorney qualified for absolute immunity

because she acted in a prosecutorial capacity and the Commission trial was “functionally

comparable” to a judicial proceeding), aff’d, 822 F.2d 324, 328-29 (2d Cir. 1987). The

Commission attorneys who testified at plaintiff’s administrative trial are therefore immune from

liability premised on their testimony.

4. Absolute Immunity Bars Plaintiff’s Remaining Allegations of

Malicious Abuse of Process

Plaintiff’s remaining allegations of malicious abuse of process are barred by absolute prosecutorial

immunity. When assessing whether claims are barred by absolute immunity, courts focus on “the

nature of the function performed” rather than the “identity of the actor who performed it.” Bernard

v. Cnty. of Suffolk, 356 F.3d 495, 503 (2d Cir. 2004) (citation omitted). Prosecutors are entitled to

absolute immunity “when they function as advocates for the state in circumstances intimately

associated with the judicial phase of the criminal process.” Id. at 502 (internal quotation marks

and citation omitted). “[N]on-prosecutor officials” enjoy the same protections when they perform

“functions analogous to those of a prosecutor”—such as instituting an administrative proceeding.

Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010); see, e.g., Rudow v. City of New York, 822 F.2d

324, 328 (2d Cir. 1987) (extending absolute immunity to a Commission lawyer). If an actor is

performing a function covered by absolute immunity, “the actor is shielded from liability for

damages regardless of the wrongfulness of his motive or the degree of injury caused.” Bernard,

356 F.3d at 503. For example, prosecutors retain absolute immunity even when a plaintiff alleges

the “knowing use of perjured testimony” or the “deliberate withholding of exculpatory

information.” Shmueli v. City of New York, 424 F.3d 231, 237 (2d Cir. 2005) (citation omitted).

Such conduct may be “reprehensible,” but it still reflects the exercise of prosecutorial

discretion. Ibid. In contrast, officials are not absolutely immune when they act “without any

colorable claim of authority.” Ibid. Nor are officials protected when they perform investigative

functions typically associated with police or other law enforcement officers. See, e.g., Kalina v.

Fletcher, 522 U.S. 118, 129-30 (1997); Buckley v. Fitzsimmons, 509 U.S. 259, 273-74 (1993);

Burns v. Reed, 500 U.S. 478, 493 (1991). Investigative work done “[b]efore any formal legal

proceeding has begun and before there is probable cause” is only entitled to qualified immunity.

Hill v. City of New York, 45 F.3d 653, 661 (2d Cir.1995).

Applying these principles, the Commission attorneys are entitled to absolute immunity

from plaintiff’s remaining malicious-abuse-of-process allegations. The remaining allegations are

that Commission attorneys abused process by “tr[ying] to bolster their case and the issuance of

their finding of probable cause (and related prosecution) by concealing exculpatory evidence . . .

and concealing the fact that they issued illegal subpoenas.” Compl. ¶ 178. The Commission

attorney have absolute immunity as to such alleged activities because they are “activities that can

fairly be characterized as closely associated with the conduct of litigation.” Barrett v. United

States, 798 F.2d 565, 572 (2d Cir. 1986); see Morales v. City of New York, 59 F. Supp. 3d 573,

579 (S.D.N.Y. 2014) (explaining that prosecutors have absolute immunity for claims of

concealment of exculpatory evidence) (citing Imbler v. Pachtman, 424 U.S. 409, 431 n.34 (1976)).

Regardless of whether that conduct is reprehensible, it reflects the exercise of prosecutorial

discretion. See Shmueli, 424 F.3d at 237.

In sum, absolute and qualified immunity bar plaintiff’s claims of malicious abuse of

process against the Commission attorneys.

II. The Court Declines to Retain Jurisdiction Over Plaintiff’s State Claims

Having dismissed plaintiff’s federal claims, I decline to retain jurisdiction over her state

claims. See 28 U.S.C. § 1367(c). Four factors bear on whether it is appropriate to exercise

supplemental jurisdiction: “judicial economy, convenience, fairness, and comity.” Catzin v. Thank

You & Good Luck Corp., 899 F.3d 77, 81 (2d Cir. 2018). These factors counsel in favor of

dismissing plaintiff’s state-law claims. This case is still in its preliminary stages. And it would be

at least as convenient and fair for the parties to litigate these state-law claims in state court.

Indeed, “[i]t is well settled that where, as here, the federal claims are eliminated in the early

stages of litigation, courts should generally decline to exercise pendent jurisdiction over remaining

state law claims.” Klein & Co. Futures, Inc. v. Bd. of Trade of City of New York, 464 F.3d 255,

262 (2d Cir. 2006); see Pension Benefit Guar. Corp. ex rel. St Vincent Catholic Med. Ctrs. Ret.

Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 727 (2d Cir. 2013) (In the “usual case in

which 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.”); Brzak v. United Nations,

597 F.3d 107, 113-14 (2d Cir. 2020) (internal quotation marks and citation omitted) (“[I]f a

plaintiff’s federal claims are dismissed before trial, the state claims should be dismissed as well.”).

Plaintiff has not articulated any reason to exercise supplemental jurisdiction here. Her state-law

claims are therefore dismissed.

CONCLUSION

For the foregoing reasons, Corporation Counsel’s motion to dismiss is granted. Kladova’s

motion to dismiss is denied as moot.

SO ORDERED.

/s/ Rachel Kovner

RACHEL P. KOVNER

United States District Judge

Dated: September 27, 2021

Brooklyn, New York