Byrd v. Grove Street Management Corporation et al

Filing 47

DECISION AND ORDER granting in part and denying in part 39 Defendants' Motion for Judgment on the Pleadings as follows: the unlawful eviction claim under N.Y. Real Prop. Acts. Law § 853 is dismissed with prejudice; any claims seeking dam ages under FHA Section 3604(a) or Section 3617 for injuries that post-date the state court judgment allowing Defendants to evict her are dismissed with prejudice; the remaining claims under FHA Section 3604(a) and Section 3671 are not barred by Rooke r-Feldman or res judicata and survive Defendants motion for judgment on the pleadings; the claims under NYSHRL survive to the extent that the FHA claims do; and any claims under 18 U.S.C. § 1001 are dismissed with prejudice. The matter is referr ed again to Magistrate Judge Feldman for completion of discovery and pre-trial proceedings. Signed by Hon. Michael A. Telesca on 6/25/18. (Copy of Decision and Order sent by first class mail to Plaintiff.) (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

VICKIE DIANNE BYRD,
Plaintiff,
DECISION and ORDER
No. 6:16-cv-6017(MAT)

-vsGROVE STREET MANAGEMENT CORPORATION
and BARBARA MANOR LLC,
Defendants.

I.

Introduction
Vickie

Dianne

Byrd

(“Plaintiff”),

proceeding

pro

se,

instituted this action against Grove Street Management Corporation
and Barbara Manor LLC (collectively, “Defendants”),1 alleging,
inter

alia,

discrimination

based

on

race

and

disability

in

violation of the Fair Housing Act, 42 U.S.C. § 3601, et seq. (“the
FHA”), and violations of 18 U.S.C. § 1001. Presently before the
Court is Defendants’ Motion for Judgment on the Pleadings (Docket
No. 39) pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure (“Rule 12(c)”).

1

Defendants indicate in their Answer to the First Amended Complaint (Docket
No. 34) that the correct legal name of the entity identified in the caption as
“Grove Street Management Corporation” is KTB Capital LLC d/b/a Grove Street
Management. In addition, they state that the correct legal name of the entity
identified as “Barbara Manor LLC” is Barbara Manor Apartments LLC. The Clerk of
Court is directed to amend the caption accordingly. The Court will use the
correct legal names of the defendants throughout this Decision and Order.

II.

Factual Background
Plaintiff

rented

an

apartment

owned

by

Barbara

Manor

Apartments, LLC (“Barbara Manor”) in Rochester, New York, with a
lease term that expired on October 31, 2015. As the end of the
lease

term

Management

approached,
(“Grove

KTB

Street”),

Capital
the

LLC

d/b/a

property

Grove

manager,

Street
notified

Plaintiff that her lease would not be renewed and that she would
need to vacate the apartment at the conclusion of the lease term.
Plaintiff declined to comply with Grove Street’s request, and
remained in the apartment beyond the expiration of her lease term.
Barbara Manor subsequently initiated an eviction proceeding
against Plaintiff on November 10, 2015, in New York State, Monroe
County

Court.

See

Barbara

Manor

Apartments,

No. 2015-12545 (Monroe Cty. Ct. 2015).2

LLC

v.

Byrd,

The Monroe County Court

awarded judgment in favor of Barbara Manor on November 24, 2015,
and issued a warrant of eviction against Plaintiff.
Plaintiff subsequently filed a “Verified Complaint Article 15
of the Executive Law of the State of New York (Human Rights Law)”
(Docket No. 43, ECF p. 12 of 53) with the New York State Department
of Human Rights (“NYSDHR”), alleging that she was subjected to
discrimination because of her “disability, race/color, opposed
discrimination/retaliation, creed, sex, national origin, marital
status, age.” Plaintiff had received a letter from Defendants dated

2

The pleadings and judgment from this proceeding are attached as Exhibits
A and B (Docket Nos. 39-1 & 39-2) to the Declaration of Amy Hemenway, Esq.
(Docket No. 39-1).

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September 17, 2015, indicating that her lease would not be renewed.
Plaintiff accused Defendants of “retaliating against [her] because
[she] filed a case against them last year on December 29, 2014 and
[she] won[,]” and that “[t]hey are treating [her] disparagingly and
harassing [her] constantly.” Plaintiff indicated that she is “a
single a Baptist 51 year old African American, female with physical
disabilities.”

Plaintiff accused Defendants with violating “Title

VIII of the federal Fair Housing Act (FHA), as amended.” Plaintiff
submitted

a copy

of the

letter

acknowledging

receipt

of

her

Verified Complaint but not a copy of the final decision, if any,
issued by the NYSDHR.
Plaintiff commenced this action on January 11, 2016, by filing
a Complaint (Docket No. 1). She subsequently filed a First Amended
Complaint

(Docket

No.

33),

which

Defendants

answered

(Docket

No. 34).
III. Procedural Status
Following limited discovery and an unsuccessful mediation
session (Docket No. 30), the parties appeared on March 8, 2018, for
a status conference (Docket No. 40), before Magistrate Judge
Jonathan W. Feldman. Judge Feldman acknowledged that Defendants had
filed the

pending

motion

pursuant

to

Rule

12(c)

rather

than

Rule 56, but opined that Defendants should have included a “Notice
to Pro Se Litigant - Rule 56 Motions for Summary Judgment” with
their moving papers. Defendants subsequently served a copy of the
Notice on Plaintiff by regular first class mail on March 13, 2018.

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Plaintiff filed a Response (Docket No. 42) and a Supplemental
Response

(Docket

No.

43),

neither

of

which

were

served

on

Defendants. Defendants filed a Reply (Docket No. 44) on June 1,
2018, in which they assert that it would be premature to treat
their Motion for Judgment on the Pleadings as a Motion for Summary
Judgment

because,

inter

alia,

Plaintiff

has

asserted

new

allegations in her Response and the parties have not yet completed
discovery. (Docket No. 44 (citing Docket No. 42 at ECF p. 3)).
Defendants reiterate that they are asking the Court to rule only on
the sufficiency of the pleadings. The Court agrees that the motion,
which urges dismissal based on the Rooker-Feldman doctrine3 and res
judicata, can be determined pursuant to the standards applicable
under Rule 12(c).
IV. Rule 12(c) Standard
In deciding a Rule 12(c) motion for judgment on the pleadings,
courts “‘employ[ ] the same standard applicable to dismissals
pursuant to Fed. R. Civ. P. 12(b)(6).’” Hayden v. Paterson, 594
F.3d 150, 160 (2d Cir. 2010) (quoting Johnson v. Rowley, 569 F.3d
40, 43 (2d Cir. 2009) (per curiam) (alterations in original;
internal quotation marks omitted in original).
factual

allegations

in

the

complaint

as

Thus, accepts all

true

and

draw

all

reasonable inferences in the plaintiff’s favor. Ashcroft v. Iqbal,
556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (internal citation and

3

The Rooker–Feldman doctrine arises from two decisions issued by the United
States Supreme Court: Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and
Dist. Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).

-4-

quotation marks omitted). To survive a Rule 12(c) motion, the
plaintiff’s complaint “must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on
its face.” Id.
For purposes of deciding motions under Rule 12(b)(6), and by
extension, Rule 12(c), “the complaint is deemed to include any
written instrument attached to it as an exhibit or any statements
or documents incorporated in it by reference.” Int’l Audiotext
Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995)
(per curiam) (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949
F.2d 42, 47 (2d Cir. 1991)); see also FED. R. CIV. P. 10(c) (“A copy
of any written instrument which is an exhibit to a pleading is a
part thereof for all purposes.”). “Even where a document is not
incorporated by reference, the court may nevertheless consider it
where the complaint ‘relies heavily upon its terms and effect,’
which renders the document ‘integral’ to the complaint. Chambers v.
Time Warner, Inc., 282 F.3d 147, 152–53 (2d Cir. 2002) (quoting
Int’l Audiotext, 62 F.3d at 72).
V.

Discussion
A.

Overview of Plaintiff’s Claims
1.

The FHA

The FHA prohibits discrimination across a spectrum of housingrelated activities, including the provision of brokerage services,
real estate transactions, and housing sales and rentals. See

-5-

42

U.S.C.

§§

3604-3606.

Subject

to

certain

exceptions

not

applicable here, the FHA makes it “unlawful—
(a) To refuse to sell or rent after the making of a bona
fide offer, or to refuse to negotiate for the sale or
rental of, or otherwise make unavailable or deny, a
dwelling to any person because of race, color, religion,
sex, familial status, or national origin.
(b) To discriminate against any person in the terms,
conditions, or privileges of sale or rental of a
dwelling, or in the provision of services or facilities
in connection therewith, because of race, color,
religion, sex, familial status, or national origin.
. . .
(f)(1) To discriminate in the sale or rental, or to
otherwise make unavailable or deny, a dwelling to any
buyer or renter because of a handicap of—
(A) that buyer or renter,
. . .
(2) To discriminate against any person in the terms,
conditions, or privileges of sale or rental of a
dwelling, or in the provision of services or facilities
in connection with such dwelling, because of a handicap
of
—(A) that person . . . .”
42 U.S.C. § 3604 (“Section 3604”).
Plaintiff alleges that she wanted to renew her lease and
attempted to make the necessary payment, but Defendants declined to
either renew

her

lease agreement

or accept

her

payment,

and

commenced an ejectment proceeding against her. Plaintiff asserts
that Defendants intended to discriminate against her based on her
race and disabled status, and also sought to retaliate against her
for having successfully rebutted their prior attempt to evict her
in 2014. Plaintiff accuses Defendants of failing to make necessary
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repairs

that

she

had

requested

and

suggests

that

this

also

represents discrimination based on her race and disabled status, as
well as retaliation for exercising her rights. As a result of the
eviction, Plaintiff personally suffered injuries and sustained
injuries to her personal property. Although Plaintiff does not
specify the subsection under which her claims fall, they appear to
align most closely with subsections (a), (b), and (f).
The Court also construes Plaintiff’s First Amended Complaint
as attempting to assert a claim under Section 3617 of the FHA. This
section

provides

that

“[i]t

shall

be

unlawful

to

coerce,

intimidate, threaten, or interfere with any person in the exercise
or enjoyment of, or on account of his having exercised or enjoyed,
or on account of his having aided or encouraged any other person in
the exercise or enjoyment of, any right granted or protected by
section 3603, 3604, 3605, or 3606 of this title.” 42 U.S.C. § 3617
(“Section 3617”). Courts in this Circuit and elsewhere have found
that an eviction proceeding can constitute an adverse action under
Section 3617. E.g., Reyes v. Fairfield Properties, 661 F. Supp.2d
249, 267 n. 10 (E.D.N.Y. 2009) (on a Rule 12(b)(6) motion to
dismiss, “conclud[ing] that an eviction proceeding could constitute
an

adverse

action

under

[42.

U.S.C.]

section

3617”)

(citing

Neudecker v. Boisclair Corp., 351 F.3d 361, 364 (8th Cir. 2003)
(“Although the retaliatory conduct in this case involved only
threats

of

eviction,

which

were

never

carried

out,

we

find

[plaintiff] sufficiently alleged an adverse action, at least at

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this early pleading stage.”) (further citations omitted)); see
also DeSouza v. Park W. Apartments, Inc., No. 3:15-CV-01668(MPS),
2018 WL 2990099, at *11 (D. Conn. June 14, 2018) (plaintiff
fulfilled adverse action element of prima facie case based on
defendant’s “initiation of eviction proceedings in June of 2014,
along with its submissions of affidavits of noncompliance in
September

of

2014

and

March

of

2015”)

(citing,

inter

alia,

Wentworth v. Hedson, 493 F. Supp.2d 559, 571 (E.D.N.Y. 2007)
(concluding that summary judgment was not warranted on plaintiff’s
retaliation claim under 42 U.S.C. § 3617 predicated on defendant’s
initiation

of

eviction

proceedings

against

her);

Bloch

v.

Frischholz, 587 F.3d 771, 782 (7th Cir. 2009) (concluding that even
a threat of eviction can constitute a violation of 42 U.S.C.
§ 3617)).
2.

State Law Claims

Because Plaintiff is pro se, the Court has liberally construed
her First

Amended

Complaint

as

raising

claims the

under

the

New York State Human Rights Law, N.Y. Exec. Law § 290 et seq.
(“NYSHRL”) that she presented in her Verified Complaint to the
NYSDHR. N.Y. Exec. Law § 296 prohibits housing discrimination, and
courts in this Circuit have stated that the standards relevant to
NYSHRL claims parallel those applicable under the FHA. Barkley v.
Olympia Mortgage Co., No. 04 Civ. 875, 2007 WL 2437810, at *17–18
(E.D.N.Y. Aug. 22, 2007) (citing Lynn v. Vill. of Pomona, 212 F.
App’x 38, 40 (2d Cir. 2007) (unpublished opn.) (stating that “the

-8-

standards relevant to Lynn’s state and local law claims parallel
those applicable under the FHA”) (citing Dawson v. Bumble & Bumble,
398 F.3d 211, 217 (2d Cir. 2005)); accord Reyes v. Fairfield
Properties, 661 F. Supp.2d 249, 269–70 (E.D.N.Y. 2009) (stating
that the same standard as the FHA is also applied to retaliation
complaints under the NYSHRL).
In addition, the Court notes that Plaintiff alleges that her
injuries

are

traceable

to

a

“lawless

\

unlawful

eviction”

proceeding overseen by a “lawless judge” in “Monroe County Court,
which

was

a

lawless

venue.”

First

Amended

Complaint

(Docket

No. 33), ECF p. 3. In light of these allegations, the Court
construes Plaintiff’s pro se First Amended Complaint as raising a
state law claim for unlawful eviction under N.Y. Real Prop. Acts.
Law § 853.4 nd N.Y. Real Prop. Acts. § 853.
3.

Violation of 18 U.S.C. § 1001

Plaintiff accuses Defendants of violating 18 U.S.C. § 1001 by
disseminating false information that allegedly harmed her credit
rating. Section 1001 makes it a crime for a person, “in any matter
within the jurisdiction of the executive, legislative, or judicial
branch of the Government of the United States,” to “knowingly and
willfully” . . . “falsif[y], conceal[ ], or cover[ ] up by any
trick, scheme, or device a material fact; . . . make[ ] any

4

“If a person is disseized, ejected, or put out of real property in a
forcible or unlawful manner, or, after he has been put out, is held and kept out
by force or by putting him in fear of personal violence or by unlawful means, he
is entitled to recover treble damages in an action therefor against the
wrong-doer.” N.Y. Real Prop. Acts. Law § 853 (McKinney).

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materially

false,

fictitious,

or

fraudulent

statement

or

representation; or . . . make[ ] or use[ ] any false writing or
document

knowing

the

same

to

contain

any

materially

false,

fictitious, or fraudulent statement or entry. . . .” 18 U.S.C.
§ 1001(a).
B.

Defendants’ Arguments in Support of Dismissal
1.

Rooker-Feldman Doctrine

Defendants first argue that the Rooker-Feldman doctrine bars
this Court’s consideration of Plaintiff’s claims. This “doctrine
precludes district courts from obtaining jurisdiction both over the
rare case styled as a direct appeal,” Simes v. Huckabee, 354 F.3d
823, 827 (8th Cir. 2004) (citing Rooker, 263 U.S. at 416), “as well
as more common claims which are ‘inextricably intertwined’ with
state court decisions.” Simes, 354 F.3d at 827 (quoting Feldman,
460 U.S. at 483). In other words, Rooker-Feldman stands for the
proposition that “lower federal courts possess no power whatever to
sit in direct review of state court decisions.” Atl. Coast Line R.
Co. v. Bhd. of Locomotive Eng’rs, 398 U.S. 281, 296 (1970).
At one time, courts improperly equated this doctrine with that
of res judicata. E.g., Moccio v. N.Y. State Office of Court Admin.,
95

F.3d

195,

199–200

(2d

Cir.

1996).

The

Supreme

Court

has

clarified that whereas Rooker–Feldman is jurisdictional in nature,
res judicata deals with preclusion. Exxon Mobil Corp. v. Saudi
Basic Indus., 544 U.S. 280, 293 (2005) (“Exxon”) (stating that
“[p]reclusion, of course, is not a jurisdictional matter”) (citing

-10-

FED. R. CIV. P. 8(c) (listing res judicata as an affirmative
defense)). The Supreme Court acknowledged that “Rooker–Feldman does
not otherwise override or supplant preclusion doctrine. . . .” Id.
In other words, Rooker–Feldman and, for example, res judicata, are
not mutually exclusive.

See id.

The Rooker–Feldman doctrine is “confined to cases . . .
brought by state court losers complaining of injuries caused by
state

court

proceedings

judgments
commenced

rendered

and

before

inviting

the

district

district
court

court

review

and

rejection of those judgments.” Exxon, 544 U.S. at 284 (emphasis
supplied). The Supreme Court in Exxon explicitly stated, however,
that courts may exercise jurisdiction when a “party attempts to
litigate[ ] in federal court a matter previously litigated in state
court.” Id.

at

293.

For

instance,

“[i]f a

federal

plaintiff

‘presents some independent claim, albeit one that denies a legal
conclusion that a state court has reached in a case to which he was
a party . . ., then there is jurisdiction and state law determines
whether the defendant prevails under principles of preclusion.’”
Id. (citing GASH Assocs. v. Rosemount, 995 F.2d 726, 728 (7th Cir.
1993) (alteration in original)). Put simply, the Rooker-Feldman
doctrine bars a plaintiff from asserting claims that attempt, in
one way or another, “to undo [a] [state] judgment in [her] favor.”
Exxon, 544 U.S. at 294.
From the Supreme Court’s precedents, the Second Circuit has
distilled four prerequisites for the invocation of Rooker-Feldman.

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First,

“the

federal-court

plaintiff

must

have

lost

in

state

court[;]” second, “the plaintiff must complain[ ] of injuries
caused by [a] state-court judgment[;]” third, “the plaintiff must
invit[e] district court review and rejection of [that] judgment[;]”
and fourth, “the state-court judgment must have been rendered
before the district court proceedings commenced. . . .” Hoblock v.
Albany Cty. Bd. of Elections, 422 F.3d 77, 85 (2d Cir. 2005)
(internal quotation marks and quotation and footnote omitted; some
brackets in original). The Second Circuit has described the first
and fourth of these requirements as procedural, and the second and
third requirements as substantive. Id.
The Court proceeds to evaluate whether any of Plaintiff’s
claims are barred by the Rooker-Feldman doctrine.
a. The Unlawful Eviction Claim
There

is

no

question Plaintiff

lost

in

the

state

court

proceeding insofar as she was evicted, and Defendants were awarded
possession of the apartment as well as various items of money
damages against her. Therefore, the first Hoblock factor is met.
Cf.

Reyes

v.

Fairfield

Properties,

661

F.

Supp.2d

249,

273

(E.D.N.Y. 2009) (“[B]ecause [the former tenants] now seek to
effectively set aside the judgment authorizing the warrant of
eviction, based upon the stipulation of settlement, on the basis
that such violated [former tenants’] rights, the [c]ourt deems
[them] a losing party in a state court action for purposes of this
procedural requirement of Rooker–Feldman.”) (citing Green v. City

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of N.Y., 438 F. Supp.2d 111, 119 (E.D.N.Y. 2006); other citation
omitted).
To evaluate the second requirement, the Second Circuit has
devised the following formula: “[A] federal suit complains of
injury from a state-court judgment, even if it appears to complain
only of a third party’s actions, when the third party’s actions are
produced

by

a

state-court

judgment

and

not

simply

ratified,

acquiesced in, or left unpunished by it.” Hoblock, 422 F.3d at 88.
The Court finds that Plaintiff’s injuries were “produced by” the
state court judgment evicting her from the apartment and returning
possession of it to Defendants. Therefore, the Court finds that the
second Hoblock factor has been met. E.g., Reyes, 661 F. Supp.2d at
273

(in

their

state-law

unlawful

eviction

claim,

plaintiffs

complained of injuries caused by the state court judgment, namely,
their eviction from their apartment unit).
As a result, it is also apparent that third Hoblock factor is
fulfilled, because Plaintiff’s attack on the allegedly unlawful
eviction seeks federal court review and rejection of the state
court

judgment,

which

Plaintiff

suggests

was

entered

without

jurisdiction, on December 2, 2015. E.g., Reyes, 661 F. Supp.2d at
272 (finding that the plaintiffs’ unlawful eviction claim invited
district court to “‘review and reject[ ]’ a state court judgment
and runs afoul of the jurisdictional limits set by the United
States Supreme Court under the Rooker–Feldman doctrine”).

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With regard to the fourth Hoblock factor, there is no dispute
that the state court judgment was rendered prior to the initiation
of this action. In an argument somewhat related to this factor,
Plaintiff suggests that the Court has authority to consider this
action based upon the federal removal statute, 28 U.S.C. § 1441, or
the change of venue statute, 28 U.S.C. § 1404(a). (Docket No. 42,
ECF p. 9). Plaintiff contends that a transfer of the proceeding
“initiated in state courts \ may \ be\ removed to the district
court pursuant to 28 U.S.C. § 1441. (Docket No. 42, ECF p. 9).
However,

as

Defendants

argue,

neither

of

these

statutes

are

applicable because the state court proceeding already had concluded
prior to Plaintiff’s commencement of this action.
In

sum,

because

all

of

the

substantive

and

procedural

requirements have been met, the Court finds that the Rooker-Feldman
doctrine bars this Court from hearing Plaintiff’s unlawful eviction
claim.
b.

The FHA and NYSHRL Claims

“Courts have routinely acknowledged Exxon’s guidance that the
doctrine occupies a ‘narrow ground.’” Peet v. Associated Bank, N.A.
Mendota Heights, No. CIV. 11-2544 SRN/JJG, 2012 WL 7589401, at *3
(D. Minn. July 20, 2012) (citing Friends of Lake View Sch. Dist.
Inc. No. 35 of Phillips Cnty. v. Beebe, 578 F.3d 753, 758 (8th Cir.
2009)),

report

and

recommendation

adopted,

No.

CIV.

11-2544

SRN/JJG, 2013 WL 717349 (D. Minn. Feb. 27, 2013), aff’d, 556 F.
App’x 546 (8th Cir. 2014). As discussed further below, the Court

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finds that under the narrow scope of Rooker-Feldman, as clarified
by Exxon, it has jurisdiction over certain of Plaintiff’s FHA
claims. Because NYSHRL claims are adjudged by the same standards
applicable to the FHA, see, e.g., Barkley, 2007 WL 2437810, at *1718, Plaintiff’s NYSHRL claims survive to the extent that her FHA
claims do.
First,

with

regard

to

Defendants’

alleged

discriminatory

denial of maintenance services to her apartment, which the Court
has construed as arising under Sections 3604(b) and 3604(f)(2)(A),
these claims were not “produced by” the state court proceeding. The
alleged injuries were inflicted by Defendants before the state
court proceeding. In other words, Defendants’ complained-of actions
were “simply ratified, acquiesced in, or left unpunished by [the
state-court

judgment].”

Hoblock,

422

F.3d

at

88.

Therefore,

Rooker–Feldman does not apply. See, e.g., Fayyumi v. City of
Hickory Hills, 18 F. Supp.2d 909, 916 (N.D. Ill. 1998) (denial of
maintenance services under FHA not barred by Rooker-Feldman).
The Court next turns to Plaintiff’s claims that Defendants
acted with intent to discriminate on the bases of her race and
disability in denying her request to renew her lease. The Court has
construed these claims as arising under Sections 3604(a), 3604(b),
and 3604(f)(1)(A) of the FHA. Relatedly, Plaintiff claims that
Defendants denied her request to renew her lease to retaliate
against her for a previous, successful assertion of her fair
housing rights; the Court construes this claim as arising under

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Section 3617.

Here, the injury about which Plaintiff complains is

the denial of the request to renew her lease. While the state court
judgment of eviction was a consequence of Defendants’ denial of the
request to renew her lease, it cannot be said that Defendants’
failure to renew the lease was “caused by” the state court judgment
of eviction. Rather, Defendants’ challenged actions—the refusal to
renew the lease—were “simply ratified, acquiesced in, or left
unpunished by [the state court judgment].” Hoblock, 422 F.3d at 88.
Therefore, the Court finds that these claims are not subject to
Rooker-Feldman.
The Court next examines Plaintiff’s claims that Defendants
commenced the summary eviction proceeding to retaliate against her
for exercising her rights, and to discriminate against her. The
Court has construed them as arising under Section 3617 and Section
3604(a),

respectively.

The

injuries

of

which

Plaintiff

complains—retaliation and discrimination culminating in the filing
of a petition to regain possession of the apartment and evict
her—occurred prior to the actual judgment of eviction. Therefore,
the Court finds that Rooker-Feldman does not apply. See Peet v.
Associated Bank, N.A. Mendota Heights, No. CIV. 11-2544 SRN/JJG,
2012 WL 7589401, at *4 (D. Minn. July 20, 2012) (“The injury
complained of in this case is the same exact injury that the state
court

ruled

on—retaliation

and

discrimination

resulting

in

deprivation of services and an attempt to evict. Each and every
injury and allegation [the] [p]laintiff complains of predates the

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eviction order. Because the injuries predate the order, they could
not

be

‘caused

inapplicable.”),

by’

the

report

order
and

and,

thus,

recommendation

Rooker–Feldman
adopted,

No.

is

CIV.

11-2544 SRN/JJG, 2013 WL 717349 (D. Minn. Feb. 27, 2013), aff’d,
556 F. App’x 546 (8th Cir. 2014).
However, to the extent that Plaintiff seeks damages under
Section 3064(a) or Section 3617 for injuries that post-date the
state court judgment allowing Defendants to evict her, these claims
are barred by Rooker-Feldman because the injuries would not have
occurred “but for” the eviction order. See Fayyumi, 18 F. Supp.2d
at 916–17

(dismissing wrongful eviction claim under Section 3604

of the FHA because the “plaintiffs suffered damage once the state
court enabled the defendants to proceed, by allowing the defendants
to gain possession of their apartment”).
Defendants rely on Babalola v. B.Y. Equities, Inc., 63 F.
App’x 534, 536 (2d Cir. 2003) (unpublished opn.), to argue that
Plaintiff’s claims are barred because a determination on them
involves a review of the state court decision on the validity of
the warrant of eviction that was issued. There, the Second Circuit
affirmed the district court’s decision5 that the evicted tenant’s
FHA and civil rights claims were barred by Rooker-Feldman because
they

were

“inextricably

intertwined”

with

prior

state

court

5

The magistrate judge’s report and recommendation is not available on any
online legal database such as Westlaw, or on the PACER system. A review of the
docket sheet available on the Eastern District of New York’s CM/ECF system
indicates that the district court summarily affirmed the magistrate judge’s
report and recommendation without explanation.

-17-

determinations regarding the propriety of the eviction warrant
initially issued by the New York housing court. The Court finds it
significant

that

Babalola,

a

non-precedential,

unpublished

decision, predates Hoblock, in which the Second Circuit which
rigorously examined the Rooker-Feldman doctrine and reformulated
the applicable standard in light of the Supreme Court’s Exxon
decision.
Moreover,

it

is

distinguishable

because

here,

certain

of

Plaintiff’s Section 3604 and Section 3617 claims, as discussed in
the preceding paragraphs, are not “inextricably intertwined” with
the state court judgment. Reyes, 661 F. Supp.2d at 274 n. 16
(plaintiff’s breach of contract and duty of fair dealing claims
“rely on the factual allegations of discrimination and retaliation
based on disability that also support the FHAA and NYSHRL claims;”
the claims “do not allege that in seeking to evict plaintiff on the
basis of her holdover status, defendants acted illegally; rather,
the amended complaint makes clear that such alleged breaches
occurred as the result of defendants’ alleged discriminatory and
retaliatory actions”) (distinguishing Babalola, 63 F. App’x at
536).
2.
The

Court

Res Judicata
next

considers

Defendants’

argument

that

the

doctrine of res judicata bars Plaintiff’s FHA and NYSHRL claims.6

6

Having found that Plaintiff’s unlawful eviction claim under N.Y. Real Prop.
Acts. § 853 is barred by Rooker-Feldman, the Court need not consider Defendants’
alternative res judicata argument.

-18-

See Reyes, 661 F. Supp.2d at 275 (“A court may dismiss a claim on
res judicata or collateral estoppel on either a motion to dismiss
or a motion for summary judgment.”) (citing Salahuddin v. Jones,
992 F.2d 447, 449 (2d Cir. 1993) (affirming dismissal of claims
under Rule 12(b) on grounds of res judicata); other citations
omitted).
“Under the doctrine of res judicata, or claim preclusion, ‘a
final judgment on the merits of an action precludes the parties or
their privies from relitigating issues that were or could have been
raised in that action.’” Flaherty v. Lang, 199 F.3d 607, 612
(2d Cir. 1999) (quoting Rivet v. Regions Bank of La., 522 U.S. 470,
476 (1998) (internal quotation marks omitted in original; emphasis
in original); other citation omitted). “Res judicata applies to
defenses that could have been raised in the prior action as well.”
Swiatkowski v. Citibank, 745 F. Supp.2d 150, 171 (E.D.N.Y. 2010)
(citing Waldman v. Vill. of Kiryas Joel, 39 F. Supp.2d 370, 377
(S.D.N.Y. 1999) (“‘[R]es judicata prevents a party from litigating
any issue or defense that could have been raised or decided in a
previous suit, even if the issue or defense was not actually raised
or decided.’”) (quoting Woods v. Dunlop Tire Corp., 972 F.2d 36, 38
(2d Cir. 1992)), aff’d, 446 F. App’x 360 (2d Cir. 2011); see also
Springer v. Lincoln Shore Owners, Inc., No. 03CV4676(FB)(KAM), 2007

-19-

WL 2403165, at *3 (E.D.N.Y. Aug. 16, 2007) (res judicata “applies
to defenses as well as to causes of action”) (citation omitted).7
In determining whether the Court must accord the Monroe County
Court’s

judgment

preclusive

effect,

the

Court’s

“analysis

is

governed by New York State law, which has adopted a transactional
analysis of res judicata, ‘barring a later claim arising out of the
same factual grouping as an earlier litigated claim even if the
later

claim

is

based

on

different

legal

theories

or

seeks

dissimilar or additional relief.’” Burgos v. Hopkins, 14 F.3d 787,
790 (2d Cir. 1994) (citation omitted). Where, however, “the initial
forum did not have the power to award the full measure of relief
sought in the later litigation,” res judicata will not apply. Id.
(quotation omitted). Thus, where the subsequent claim arises from
the “same factual grouping,” id., as the initial action, it is
barred by res judicata unless the plaintiff was precluded from
recovery

in

the

initial

action

“by

formal

jurisdictional

or

statutory barriers, not by [the] plaintiff’s choice.” Id.; accord,
e.g., Jacobson v. Fireman’s Fund Ins. Co., No. 95 Civ. 9380(AGS),
1996 WL 204468, at *4 (S.D.N.Y. Apr. 26, 1996), aff’d, 111 F.3d 261
(2d Cir. 1997); Peters v. Timespan Commc’ns, Inc., No. 97 CIV. 8750
(DC), 2000 WL 340900, at *4 (S.D.N.Y. Mar. 30, 2000).

7

In evaluating the res judicata effect of a prior judgment, “courts
routinely take judicial notice of documents filed in other courts, again not for
the truth of the matters asserted in the other litigation, but rather to
establish the fact of such litigation and related filings.” Kramer v. Time Warner
Inc., 937 F.2d 767, 774 (2d Cir. 1991) (citation omitted).

-20-

Thus, “[t]o prove establish the affirmative defense [of res
judicata], a party must show that (1) the previous action involved
an adjudication on the merits; (2) the previous action involved the
[same parties] or those in privity with them; (3) the claims
asserted in the subsequent action were, or could have been, raised
in the prior action.” Monahan v. New York City Dep’t of Corr., 214
F.3d 275, 285 (2d Cir. 2000) (citations omitted). Examining these
prerequisites, there appears to be no doubt that the first two have
been met. The evicting proceeding in Monroe County Court involved
“the same parties,” In re Hunter, 4 N.Y.3d 260, 270 (2005), and
resulted in a “judgment on the merits[,]” id.

See, e.g., Springer

v. Lincoln Shore Owners, Inc., No. 03CV4676(FB)(KAM), 2007 WL
2403165, at *3 (E.D.N.Y. Aug. 16, 2007) (defendant-landlord brought
summary holdover proceeding in New York City Civil Court against
plaintiff-tenant based on repeated violation of excessive noise
rule, and Civil Court issued a judgment of possession and warrant
of eviction; district court found, for res judicata purposes,
“[t]here is no question that the Civil Court proceeding involved
the same parties [as federal lawsuit alleging violations of FHA and
Americans with Disabilities Act] and resulted in a judgment on the
merits in favor of [defendant-landlord]”).
The Court also finds that “the first judgment . . . involve[d]
the same ‘transaction’ or connected series of transactions as the
earlier suit[,]” Maharaj v. Bankamerica Corp., 128 F.3d 94, 97 (2d
Cir. 1997) (citation omitted), namely, Defendants’ failure to renew

-21-

her lease and commencement of the summary eviction proceeding.
Whether the claims Plaintiff asserts in this action were, or could
have been, raised in the prior action, see Monahan, 214 F.3d at
285, presents a somewhat more difficult question. Defendants argue
that Plaintiff could have asserted her FHA claims in the state
court eviction proceeding brought pursuant to N.Y. Real Prop. Acts.
§§ 701-767 (“RPAPL Art. 7”), because she could have raised them as
counterclaims or defenses. (See Docket No. 39-4, pp. 12-14 of 17;
Docket No. 44, pp. 8-9 of 9). RPAPL Art. 7 and Article VI of the
New York State Constitution confer jurisdiction on the county
courts to hear summary eviction proceedings. See N.Y. Real Prop.
Acts. Law § 701(1) (“A special proceeding to recover real property
may be maintained in a county court . . . .”); N.Y. Const. art. VI,
§

11(a) (“The

county

court

shall

have

jurisdiction

over the

following classes of actions and proceedings[,]” including “summary
proceedings to recover possession of real property and to remove
tenants

therefrom.

respondent

in

a

.

.”).

summary

Moreover,

eviction

as

Defendants

proceeding

before

note,
a

a

county

court—such as Plaintiff—may file an answer “contain[ing] any legal
or equitable defense, or counterclaim any counterclaims or legal or
equitable defenses under state or federal law.” N.Y. Real Prop.
Acts. Law § 743; N.Y. Const. art. VI, § 11(b) (“The county court
shall exercise such equity jurisdiction as may be provided by law
and its jurisdiction to enter judgment upon a counterclaim for the
recovery of money only shall be unlimited.”). Courts in this

-22-

Circuit and New York state courts consistently have found that
tenants may raise claims under the FHA and other federal statutes
as affirmative defenses in summary eviction proceedings. See, e.g.,
Sinisgallo v. Town of Islip Housing Auth., 865 F. Supp.2d 307, 323
(E.D.N.Y.

2012)

(explaining

that

the

plaintiffs’

“federal

disability claims would constitute a ‘defense’ in the eviction
proceeding, because they contend that the [defendant]’s termination
of their tenancy without considering a reasonable accommodation for
their disabilities violates federal law and therefore is invalid”
and “[t]hus, pursuant to RPAPL § 743, where, as here, federal
disability claims have been classified as ‘defenses’ in eviction
proceedings,

housing

courts

have

jurisdiction

to

hear

them”)

(citing RCG–UA Glenwood, LLC v. Young, 801 N.Y.S.2d 481, 481–82
(N.Y. App. Term 2005) (affirming Civil Court ruling in favor of
plaintiff-tenant dismissing an eviction petition because reasonable
accommodation was required under the FHA); Crossroads Apartments
Assocs. v. LeBoo, 578 N.Y.S.2d 1004, 1004 (N.Y. City Ct. 1991)
(holding that the plaintiff in an eviction proceeding by a private
landlord in federally funded section 8 housing could assert claims
for violations of the Rehabilitation Act and FHA as affirmative
defenses with regard to no-pet policy); Landmark Props. v. Olivo,
783 N.Y.S.2d 745, 747 (N.Y. Sup. App. Term 2004) (affirming ruling
of

District

Court,

landlord-defendant
affirmative

Nassau

where

defense

that

County,

awarding

possession

tenant-plaintiff failed
he

was

-23-

entitled

to

to

keep

prove
a

dog

to
his
for

therapeutic reasons as a reasonable accommodation pursuant to the
Fair Housing Act 42 U.S.C. § 3601, et seq.); Springer, supra;
Water’s Edge Habitat, Inc. v. Pulipati, 837 F. Supp. 501, 506
(E.D.N.Y. 1993) (“Under New York law, the defendant in an eviction
proceeding is entitled to present all legal and equitable defenses
he

or

she

has

available

under

State

or

federal

law. .

.

.

Accordingly, respondents have an adequate State remedy to protect
their federal rights . . . .”) (internal citations omitted); Little
Ferry Assoc. v. Diaz, 484 F. Supp. 890, 891 (S.D.N.Y. 1980)
(rejecting plaintiff’s claim that he could not assert federal
rights under 42 U.S.C. § 1983, and 42 U.S.C., § 2000e in summary
eviction proceeding under RPAPL Art. 7, in light of § 743; finding
that eviction proceeding alleged to be racially motivated may be
adequately challenged in landlord-tenant court).
There is authority for the contrary result, however. In Glover
v. Jones, 522 F. Supp.2d 496, 505–06 (W.D.N.Y. 2007), Glover, the
district court found that a prior action in Rochester City Court of
New York State seeking a judgment of eviction and a money judgment
for

back

rent

did

not

have

res

judicata

effect

against

the

plaintiff-tenant’s quid pro quo discrimination lawsuit alleging
violations of the FHA and NYSHRL by the defendant-property manager.
Glover, 522 F. Supp.2d at 505. To support its res judicata holding,
the

district

court

quoted

at

length

from

Bottini

v.

Sadore

Management Corp., 764 F.2d 116, 121 (2d Cir. 1985), and adopted
that reasoning. See Glover, 522 F. Supp.2d at 505-06 (quoting

-24-

Bottini, 764 F.2d at 121-22). In Bottini, the appellant had filed
charges based on claims of employment discrimination against Sadore
Management Corporation, his former employer, before state and
federal administrative agencies and an arbitrator. When Bottini
later filed a Title VII claim in federal district court, his former
employer argued the claim was barred by various adverse judgments
against him in the prior state litigation that related to his
discharge, including a holdover proceeding initiated by the former
employer in the Yonkers City Court to evict him from its apartment,
where he lived rent-free so long as he remained an employee. The
district court agreed and dismissed the complaint on the grounds of
res judicata. See Bottini, 764 F.2d at 118. On appeal, the former
employer argued that Bottini’s discrimination allegations were
adjudicated as part of the holdover proceeding, but, the Second
Circuit noted, “nothing in that record indicates the parties
submitted any evidence on this issue[,]” id. at 121, and “[t]he
City Court’s decision focused primarily on the merits of the
holdover proceeding[,]” id., and “found merely that Bottini’s
discharge was lawful, presumably because Bottini had challenged his
eviction

by

claiming

that

his

discharge

from

employment

was

unlawful.” Id. The Second Circuit found that “[i]nasmuch as the
land lord-tenant city court had limited jurisdiction, it was not a
competent or appropriate tribunal to hear Bottini’s allegations of
religious discrimination against his employer.” Id. The Second
Circuit reasoned that since Bottini “did not have a full and fair

-25-

opportunity to litigate his [discrimination] claim in the Yonkers
City Court [holdover proceeding], its judgment should not bar him
from bringing his Title VII claim in federal court.” Id. (citing
Allen v. McCurry, 449 U.S. 90, 95 (1980)).
The “full and fair opportunity” language in Allen, on by which
the Second Circuit relied in Bottini, is actually contained in the
Supreme

Court’s

discussion

of

collateral

estoppel,

not

res

judicata. See Allen, 449 U.S. at 95 (stating that “one general
limitation [it] has repeatedly recognized is that the concept of
collateral estoppel cannot apply when the party against whom the
earlier

decision

is

asserted

did

not

have

a

‘full

and

fair

opportunity’ to litigate that issue in the earlier case”) (citing
Montana

v.

United

States,

440

U.S.

147,

153–54

(1979);

Blonder-Tongue Laboratories v. Univ. of Illinois Foundation, 402
U.S. 313, 333 (1971)). In Montana, however, the Supreme Court
referenced the “full and fair opportunity to litigate” language in
a paragraph discussing the “related doctrines” collateral estoppel
and res judicata, and the “[a]pplication of both doctrines. . . .”
Montana, 440 U.S. at 153. In Kremer v. Chem. Const. Corp., 456 U.S.
461 (1982), the Supreme Court observed that “[w]hile [its] previous
expressions of the requirement of a full and fair opportunity to
litigate have been in the context of collateral estoppel or issue
preclusion, it is clear from what follows that invocation of res
judicata or claim preclusion is subject to the same limitation.”
Id. at 481, n. 22. See also, e.g., EDP Med. Computer Sys., Inc. v.

-26-

United States, 480 F.3d 621, 626 (2d Cir. 2007) (“Res judicata does
not require the precluded claim to actually have been litigated;
its concern, rather, is that the party against whom the doctrine is
asserted had a full and fair opportunity to litigate the claim.”)
(citing Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398
(1981)). The Supreme Court in Kremer went on to observe that
res judicata commands a federal court to accept the rules chosen by
the State from which the judgment is taken.” 456 U.S. at 482
(citation omitted). And the New York courts refer to the “full and
fair opportunity” limitation in their application of res judicata.
E.g., Lanuto v. Constantine, 627 N.Y.S.2d 144, 145 (3d Dep’t 1995)
(“Res judicata bars litigation of a claim that was either raised or
could have been raised in a prior action, provided that the party
to be barred had a full and fair opportunity to litigate the claim
and the disposition was on the merits[.]”) (citing McNeary v.
Senecal, 603 N.Y.S.2d 60, 61 (3d Dep’t 1993) (in turn citing, inter
alia, Smith v. Russell Sage Coll., 54 N.Y.2d 185, 192-93) (1981)).
The “full and fair opportunity” to litigate “exception” to res
judicata, which is grounded in Due Process concerns, “arises when
there is reason ‘to doubt the quality, extensiveness, or fairness
of procedures followed in prior litigation.’” Twersky v. Yeshiva
Univ., 112 F. Supp.3d 173, 180 (S.D.N.Y. 2015) (quoting Kremer, 456
U.S. at 481 & n. 22 (quoting Montana, 440 U.S. at 164 n. 11), aff’d
sub nom. Gutman v. Yeshiva Univ., 637 F. App’x 48 (2d Cir. 2016);
see also United States v. Katz, No. 10 CIV. 3335, 2011 WL 2175787,

-27-

at *5 (S.D.N.Y. June 2, 2011) (“[B]oth federal and state law
mandate that the party against whom res judicata is asserted must
have had a ‘full and fair opportunity’ to litigate its claims in
the prior proceeding.”) (citing Locurto v. Giuliani, 447 F.3d 159,
170–71 (2d Cir. 2006); Landau v. LaRossa, Mitchell & Ross, 11
N.Y.3d 8, 14 (2008)). As discussed further below, the Court finds
that the exception applies here.
At the outset, the Court notes that the “summary proceeding”
under N.Y. Real Prop. Acts. Law, Art. 7 that Defendants utilized in
this case “is a statutory device designed to achieve simple,
expeditious and inexpensive resolution of disputes over the right
to possession of real property.” Glen 6 Assoc. Inc. v. Dedaj, 770
F. Supp. 225, 226 (S.D.N.Y. 1991). To that end, it is “based on
petition, [N.Y. Real Prop. Acts. Law] § 731, and may proceed
without formal pleadings, [N.Y. Real Prop. Acts. Law] § 732.” Id.
at 228. Furthermore, tenants are afforded only five days to appear
and answer. See N.Y. Real Prop. Acts. Law § 732(1). “Consistent
with the goals of simple, speedy and inexpensive resolution, the
rules governing summary proceedings ‘contain no provision for
discovery.’” United States v. Katz, No. 10 CIV. 3335, 2011 WL
2175787, at *8 (S.D.N.Y. June 2, 2011) (quoting Glen 6 Assoc., 770
F. Supp. at 228). Plaintiff’s FHA and NYSHRL claims for disabilityand

race-based

discrimination

and

retaliation

are

more

aptly

characterized as counterclaims rather than defenses to Defendants’
summary holdover proceeding and, as such, likely would have been

-28-

severed by the County Court. See, e.g., Sinisgallo, 865 F. Supp.2d
at 323 (noting that a “party can raise a defense, legal or
equitable, state or federal, in a summary proceeding commenced in
New

York

State,”

but,

“[n]evertheless,

‘the

need

for

speedy

dispositions in landlord-tenant matters ordinarily dictates that
counterclaims be severed unless they are in essence a defense to
landlord’s claim or so intertwined with such a defense as to become
part and parcel thereof’”) (quoting Committed Cmty. Assocs. v.
Croswell, 171 Misc.2d 340, 343 (N.Y. App. Term 2d Dep’t 1997),
aff’d, 673 N.Y.S.2d 708 (2d Dep’t 1998)); see also

Smalkowski v.

Vernon, No. 80162/00, 2001 WL 914248, at *1 (N.Y. Civ. Ct. Mar. 9,
2001) (tenant’s counterclaims are for money damages and attorneys’
fees based on landlord’s alleged violations of the federal and
state

prohibitions

against

race-based

and

disability-based

discrimination; declining to exercise such ancillary or pendent
jurisdiction as it may have to adjudicate the counterclaims and
severing them without prejudice because they would be “better
litigated in a plenary proceeding, where discovery is available as
of right”).
3.

Unavailability of a Private Right of Action Under
18 U.S.C. § 1001

Defendants also seek dismissal of any claims Plaintiff brings
pursuant to 18 U.S.C. § 1001, which criminalizes the knowing and
willful making of materially false or fraudulent statements or
representations. see Hubbard v. United States, 514 U.S. 695, 699

-29-

(1995) (“Section 1001 criminalizes false statements and similar
misconduct occurring ‘in any matter within the jurisdiction of any
department or agency of the United States.’”).
The Supreme Court has explained that “provision of a criminal
penalty does not necessarily preclude implication of a private
cause of action for damages[,]” Cort v. Ash, 422 U.S. 66, 79
(1975), but there must be “at least a statutory basis for inferring
that a civil cause of action of some sort lay in favor of someone.”
Id. (footnote omitted). Here, Section 1001 “is clearly a criminal
statute,

aimed

at

fraud

and

concealment

with

respect

to

a

government agency, and contains no implication or suggestion of a
private right of action.” Momot v. Dziarcak, 208 F. Supp.3d 450,
460 (N.D.N.Y. 2016), reconsideration denied, No. 1:14-CV-01527,
2016 WL 10566655 (N.D.N.Y. Dec. 21, 2016). Because Section 1001
presents

“nothing

more

than

a

bare

criminal

statute,

with

absolutely no indication that civil enforcement of any kind was
available to anyone[,]” Cort, 422 U.S. at 79–80,

the Court

concludes that it statute contains no implied right of a civil
action. Momot, 208 F. Supp.3d at 460 (citing Federal Sav. & Loan
Ins. Co. v. Reeves, 816 F.2d 130, 138 (4th Cir. 1987); Johl v.
Johl, 556 F. Supp. 5, 7 (D. Conn. 1981) (“It is clear that [Section
1001] cannot serve to provide the plaintiff, a private citizen,
with a cause of action in this civil case.”); Anderson v. Wiggins,
460 F. Supp.2d 1, 8 (Dist. D.C. 2006) (same); Gause v. Rensselaer
Children & Family Servs.,No. 10-CV-0482, 2010 WL 4923266, at *1

-30-

(N.D.N.Y. Nov. 29, 2010). Accordingly, any claims under 18 U.S.C.
§ 1001 must be dismissed.
VI.

Conclusion
For the foregoing reasons, Defendants’ Motion for Judgment on

the Pleadings is granted in part and denied in part, as follows:
the unlawful eviction claim under N.Y. Real Prop. Acts. Law § 853
is dismissed with prejudice; any claims seeking damages under FHA
Section 3604(a) or Section 3617 for injuries that post-date the
state court judgment allowing Defendants to evict her are dismissed
with prejudice; the remaining claims under FHA Section 3604(a) and
Section 3671 are not barred by Rooker-Feldman or res judicata and
survive Defendants’ motion for judgment on the pleadings; the
claims under NYSHRL survive to the extent that the FHA claims do;
and any claims under 18 U.S.C. § 1001 are dismissed with prejudice.
The matters is referred again to Magistrate Judge Feldman for
completion of discovery and pre-trial proceedings.
SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
DATED:

June 25, 2018
Rochester, New York

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