United States v. East River Housing Corp. (90 F. Supp. 3d 118, 2015)

OPINION AND ORDER

RAMOS, District Judge.

Defendant, East River Housing Corporation (“East River” or “Defendant”) is a private 1,672-unit housing cooperative on Manhattan’s Lower East Side. Am. Compl. ¶7 (Doc. 3). Stephanie Aaron (“Aaron”), Amy Eisenberg (“Eisenberg”), and Steven Gilbert (“Gilbert”) (collectively, “Complainants”) are proprietary lessees of East River apartments. Id. ¶¶ 8, 11, 14. All three are subject to Proprietary Leases and House Rules that prohibit tenants from keeping dogs and other animals in East River buildings without “prior written consent.” Id. ¶¶ 34, 55, 70. Neither the Proprietary Leases nor the House Rules contain reference to any policies or procedures for granting reasonable accommodations to individuals who require service or emotional support animals because of a disability. Id. ¶ 32.

Complainants suffer from varying forms and degrees of psychiatric illness. Id. ¶¶ 33, 54, 69. At different times, all three brought dogs into their apartments — apparently without prior written consent— and found that, as a result, the symptoms of their illnesses were alleviated. Id. ¶¶ 36, 56-57, 71. Each complainant, after being told to “cure” the violation of his or her lease by removing the dog from his or her apartment, and being threatened with eviction, requested permission to keep a dog as a reasonable accommodation to his or her disability, which East River in all cases ignored or denied. Id. ¶¶ 39-45, 62-68, 74-75, 82-85.

In this action, the United States Attorney’s Office for the Southern District of New York (the “Government”) brings suit against East River under the Fair Housing Act (FHA), 42 U.S.C. §§ 3601 et seq. as amended. The Government alleges that East River, by denying Complainants the right to keep service or emotional support animals in their apartments, discriminated against Complainants on account of their disabilities in violation of the FHA. Id. ¶¶ 86-91; 42 U.S.C. §§ 3604(f)(1)(A), (f)(2), (f)(3)(B). The Government also claims that East River retaliated against Gilbert in violation of 42 U.S.C. § 3617 by threatening to pursue a claim for attorneys’ fees against Gilbert or to consider the cost of those fees “additional rent,” and by requesting excessive and intrusive information from Gilbert and his healthcare providers in connection with his request for a reasonable accommodation. Am. Compl. ¶ 93. Finally, in addition to its claims on behalf of Aaron, Eisenberg, and Gilbert, the Government alleges that East River’s conduct constitutes a pattern or practice of resistance to the full enjoyment of rights granted by the FHA, and/or a denial to a group of persons of rights granted by the FHA raising an issue of general public importance, in violation of 42 U.S.C. § 3614. Id. ¶¶ 95-97.

At present, the Court considers three motions: the Government’s motion to strike East River’s Second Affirmative Defense; East River’s motion for partial summary judgment as to the claims pertaining to Stephanie Aaron (the “Aaron claims”) and to sever the causes of action pertaining to Eisenberg and Gilbert (the “Eisenberg claims” and “Gilbert claims”); and East River’s separate motion to dismiss and/or for summary judgment on the Government’s Fifth Cause of Action, which alleges a “pattern or practice” violation under § 3614. Docs. 22, 27, 30. For the following reasons, the Government’s motion to strike is GRANTED, and both of Defendant’s motions are DENIED.

I. Factual Background and Procedural History

A. Stephanie Aaron

Stephanie Aaron has been the proprietary lessee of an East River apartment since at least 2003. Am. Compl. ¶ 8. Aaron suffers from “chronic major depression, anxiety, and post-traumatic stress disorder [ (“PTSD”) ],” which have “impacted her ability to socialize, maintain relationships, sleep, and concentrate” and “exacerbate[d] her asthma.” Id. ¶ 33. According to the Amended Complaint, she is a person with a disability under the FHA. Id. (citing 42 U.S.C. § 3602(h)).

In August 2012, Aaron experienced a “resurgence of her depression and anxiety symptoms” and “was often physically ill, unable to socialize, and overwhelmed by her circumstances, which included working in a stressful work environment with an uncertain future with her employer.” Id. ¶ 35. On or about August 22, 2012, Aaron took in a stray dog and named it “Rosie.” Id. ¶ 36. She allegedly noticed an improvement in her mental condition within a few days and therefore decided to keep the dog. Id.

On September 14, 2012, East River sent Aaron a “10 Day Notice to Cure,” stating that she had violated a substantial obligation of her tenancy by keeping an animal in her apartment and demanding that she remove the dog. Id. ¶ 37. After Aaron received the Notice to Cure, her mental condition purportedly worsened, and she paid a visit to Dr. Lori Plutchik (“Dr. Plutchik”), a psychiatrist she had visited during 2008-2011. Id. ¶ 38. On September 20, 2012, Aaron submitted a “request for reasonable accommodation” accompanied by a letter from Dr. Plutchik asking that Aaron be permitted to keep Rosie as a “service dog and emotional support animal.” Id. ¶ 39. East River did not respond to this request and, instead, sent Aaron a “10 Day Notice of Termination” on October 18, 2012, stating that she would need to vacate her apartment by November 6, 2012. Id. ¶¶ 40-41. Aaron submitted a second “request for reasonable accommodation” on October 24, 2012, again attaching Dr. Plutchik’s letter. Id. ¶ 42. East River denied this request by letter dated November 5, 2012 “on the ground that Dr. Plutchik’s letter did not use the word‘disabled.’” Id ¶43.

On November 11, 2012, Aaron received a “Notice of Petition Holdover” informing her that a “Summary Holdover Proceeding” regarding her eviction would take place on November 29, 2012 in Manhattan Housing Court (“Housing Court”). Id. ¶ 44. Via her attorney, Karen Copeland, Aaron submitted a third reasonable accommodation request on November 15, 2012, again attaching Dr. Plutchik’s letter. Id. ¶ 45. In March 2013, East River moved in Housing Court for summary judgment against Aaron and for entry of a judgment of possession and issuance of a warrant of eviction. Id. ¶ 49. A Housing Court judge granted summary judgment in favor of East River and awarded East River a final judgment of possession on April 30, 2013. Id. ¶ 51.

Meanwhile, on December 11, 2012, Aaron filed a verified complaint with the United States Department of Housing and Urban Development (“HUD”), alleging that East River had discriminated against her on the basis of disability by refusing to permit her to keep a dog as a reasonable accommodation to her psychiatric disability. Id. ¶47; Silverbush Cert. (Doc. 28), Ex. J. By letter dated December 12, 2012, HUD informed Aaron that it had referred her complaint to the New York State Division of Human Rights (“DHR”) pursuant to 42 U.S.C. § 3610(f). Id., Ex. K. The letter stated that DHR would “take all further action” on Aaron’s complaint unless DHR failed to begin processing it within 30 days, in which case HUD would take it up again. Id. Additionally, the letter advised Aaron that, if she did not agree with DHR’s final decision, she could “appeal in accordance with [DHR’s] procedures” or file a civil lawsuit in Federal District Court, but that she could not appeal DHR’s decision to HUD. Id.

DHR’s resultant investigation included a review of Aaron’s complaint, East River’s response, letters exchanged by the parties, a medical questionnaire provided by Aaron’s doctor, and interviews with Aaron herself. Id., Exs. L, M, N, 0. The investigation did not entail any exchange of discovery between the parties, and DHR did not hold any hearing. Gov’t’s Opp’n to Def.’s Mot. for Partial Summ. J. at 3 (Doc. 40). On April 23, 2013, DHR issued a “Determination and Order After Investigation” (“Determination”) stating that there was no probable cause to believe that East River had engaged in or was engaging in unlawful discriminatory practices. Doc. 28, Ex. P. The Determination declared, “While it is clear that having a dog is emotionally beneficial to Complainant and makes her happy, the evidence does not establish that it is necessary for the use and enjoyment of her residence.” Id.

Yet on May 7, 2013, DHR reopened and reactivated Aaron’s complaint pursuant to Rule 20(a) of its own Rules of Practice. See Frey Decl. ¶ 4 & Ex. B at 1; 9 N.Y.C.R.R. § 465.20(a) (noting that DHR may, on its own motion, whenever justice requires, reopen a proceeding, determination or record and take such action as may be deemed necessary). On May 22, 2013, DHR transferred the complaint back to HUD “for reconsideration and for such other or further action as deemed appropriate.” Doc. 28, Ex. S. DHR then dismissed the reopened complaint from its own docket on grounds of “administrative convenience,” concluding that “the interests of justice will best be served by HUD reactivating [Aaron’s] HUD complaint, which HUD has agreed to do.” Id., Ex. T, at 1. In its dismissal order, dated June 14, 2013, DHR explained that “[p]ursuant to a cooperative agreement ... [DHR] and HUD may mutually agree that an investigation will be completed by HUD.” Id. DHR further emphasized that, under § 297(9) of the New York Human Rights Law, “where [DHR] has dismissed [a] complaint on the grounds of administrative convenience, ... [an aggrieved person] shall maintain all rights to bring suit as if no complaint had been filed.” Id. at 2.

HUD thereafter conducted and completed its own investigation and concluded, contrary to DHR’s determination, that reasonable cause existed to believe that East River had discriminated against Aaron in violation of the FHA. Am. Compl. ¶¶ 18-19; 42 U.S.C.

§ 3610(g)(1). On October 23, 2013, the HUD Secretary (the “Secretary”) issued a charge of discrimination against East River pursuant to 42 U.S.C. § 3610(g)(2)(A). Am. Compl. ¶ 20. On November 8, 2013, East River elected, pursuant to 42 U.S.C. § 3612(o), to have the claims asserted in HUD’s charge of discrimination decided in a civil action in United States District Court instead of at an administrative hearing. Id. ¶ 21. The Secretary consequently authorized the Attorney General to file this action on Aaron’s behalf pursuant to 42 U.S.C. § 3612(o )(1). Id.

In the interim, while HUD was conducting its investigation, East River opened a parallel litigation track. On August 13, 2013, East River filed a petition against DHR, pursuant to Article 78 of the New York Civil Practice Laws and Rules (“C.P.L.R.”), in the Supreme Court, New York County (“Article 78 Petition”), seeking annulment of the June 14, 2013 DHR Order that dismissed Aaron’s complaint on the basis of administrative convenience. Doc. 28, Ex. U. That petition was denied on October 24, 2013 by the Honorable Cynthia S. Kern, and East River challenged Judge Kern’s decision in the Appellate Division, First Department. Id., Exs. W, Y. On April 17, 2014, the Appellate Division issued a decision and order (“Appellate Division Order”) reversing Judge Kern’s denial of East River’s Article 78 Petition and annulling DHR’s administrative convenience dismissal. See E. River Hous. Corp. v. New York State Div. of Human Rights, 116 A.D.3d 562, 563, 984 N.Y.S.2d 331, 331 (App.Div.2014); Doc. 28, Ex-. BB. The Appellate Division’s three-page decision, which contained no facts or analysis regarding Aaron’s underlying discrimination claim, stated that DHR’s administrative convenience dismissal had been “ ‘purely arbitrary’ and issued in contravention of [DHR’s] own rules.... ” Id. at 563, 984 N.Y.S.2d 331. The decision contained “no indication that the Appellate Division was made aware of HUD’s investigation, HUD’s issuance of a charge of discrimination, East River’s election [to proceed in Federal District' Court], or the action in this Court,” which the Govern-, ment had filed on December 5, 2013, months before the Appellate Division issued its decision. Doc. 40 at 6.

The foregoing complicated trajectory of the complaint that Stephanie Aaron filed with HUD and the Article 78 petition that East River filed in the New York Supreme Court is the subject of Defendant’s motion for partial summary judgment. See infra Part III.

B. Amy Eisenberg

Amy Eisenberg has been a proprietary lessee of an apartment at East River since at least 1998. Am. Compl. ¶ 11. She suffers from PTSD with symptoms including depression, anxiety, panic attacks, and insomnia. Id. ¶ 54. On February 15, 2012, without having obtained East River’s written consent, she brought a trained, registered service dog named “Ruby” into her apartment. Id. ¶¶ 56, 58. According to the Amended Complaint, Ruby provides emotional support, eases the symptoms of Eisenberg’s PTSD, and has been trained to complete such tasks as retrieving Eisen-berg’s medication if Eisenberg becomes incapacitated. Id. ¶¶ 57-58.

On April 25, 2012, East River issued a “10 Day Notice to Cure” requiring that Eisenberg remove Ruby from her apartment by May 11, 2012. Id. ¶ 59. On May 17, 2012, East River sent Eisenberg a “10 Day Notice of Termination” requiring that she vacate her apartment by June 1, 2012. Id. ¶ 60. On June 4, 2012, Eisenberg received a “Notice of Petition Holdover,” informing her that a Summary Holdover Proceeding would be held in Manhattan Housing Court on June 18, 2012. Id. ¶ 61. That trial date was later adjourned to February 19, 2013. Id.

In the meantime, Eisenberg’s internist, Dr. Raymond Keller (“Dr. Keller”), sent a letter to East River stating that Eisenberg had a disability and that he had prescribed that she obtain an emotional support dog in order to alleviate her stress and anxiety, enhance her ability to live independently, and fully use and enjoy her apartment. Id. ¶ 62. On February 19, 2013, Eisenberg appeared in Housing Court pro se and “stated that Ruby is a service animal that she is entitled to keep in her apartment based on a documented medical need.” Id. ¶64. The case was adjourned for East River to evaluate Eisenberg’s claim. Id. East River ultimately did not grant her request for an accommodation and did not contact Eisenberg again to discuss her request. Id.

On March 22, 2013, Eisenberg retained an attorney, who filed an amended answer to East River’s Housing Court complaint asserting defenses including an affirmative defense under the Fair Housing Act. Id. ¶ 65. On April 9, 2013, Eisenberg filed a motion for relief in Housing Court and attached exhibits, including Dr. Keller’s letter and documents to verify Ruby’s registration as a service dog. Id. ¶ 66. Ei-senberg’s case in Housing Court was adjourned for trial multiple times, id. ¶¶ 67-68, and the Court is presently unaware of the occurrence or outcome of any further Housing Court proceedings regarding Ei-senberg’s eviction.

On May 29, 2013, Eisenberg filed a complaint with HUD. Id. ¶ 22. After investigating Eisenberg’s allegations, HUD determined that reasonable cause existed to believe East River had violated the FHA by discriminating against Eisenberg. Id. ¶¶ 23-24. On December 10, 2013, the Secretary issued a charge of discrimination against East River, which East River elected to have resolved in a federal civil action, and the Secretary authorized the Attorney General to file suit on Eisen-berg’s behalf pursuant to 42 U.S.C. § 3612(o )(1). Id. ¶¶ 25-26.

C. Steven Gilbert

Steven Gilbert has been a proprietary lessee of an East River apartment since at least 2004. Id. ¶ 14. He suffers from “chronic psychiatric conditions, which limit his ability to engage in social interactions and to cope with stress and anxiety.” Id. ¶ 69. In November 2011, Gilbert hosted a guest and her dog, Olive Oil, in his East River apartment and found that his psychiatric condition improved. Id. ¶ 71. On November 23, 2011, East River sent Gilbert a “10 Day Notice to Cure,” requiring him to remove the dog from his apartment by December 8, 2011. Id. ¶ 72. On December 9, 2011, East River sent Gilbert a “10 Day Notice of Termination,” indicating that Gilbert would need to vacate his apartment by December 26, 2011. Id. ¶ 73.

Gilbert submitted a reasonable accommodation request to East River on December 21, 2011, asking that he be allowed to keep Olive Oil in order to mitigate the symptoms of his disability. He attached a letter from his treating psychiatrist, Dr. Laurie Gordon (“Dr. Gordon”), stating that “[t]he .presence of this animal is necessary for [Gilbert’s] mental health.” Id. ¶ 74.

East River did not respond, and on January 23, 2012, Gilbert received a “Notice of Petition Holdover,” informing him that a proceeding' regarding his eviction would take place in Housing Court on February 7, 2012. Id. ¶ 75. Gilbert then wrote to East River and “expressed surprise that East River did not find ‘a letter from a board-certified psychiatrist sufficient to terminate’ the eviction action arid reiterated that [he] is a disabled person under the [FHA].” Id. ¶ 76. He nonetheless agreed to remove the dog from his apartment in order “to satisfy East River’s request to cure the situation.” Id. Olive Oil was gone by the end of February. Id. ¶ 78.

However, on February 16, 2012, Gilbert filed a complaint with HUD alleging that East River had refused to grant him a reasonable accommodation to his disability. Id. ¶ 77. HUD referred his complaint to DHR, which, commenced an investigation. Id. Dr. Gordon thereafter submitted a letter to DHR, stating that “[n]o drugs or medical procedures can adequately replace the psychological and health benefits provided by a dog” and that “[Gilbert’s] dog would be an irreplaceable adjunct to medicinal and talk therapy.” Id.

After Gilbert removed the dog from his apartment, East River informed him that it would discontinue its eviction proceeding against him but would still seek attorney’s fees in the Housing Court action unless Gilbert withdrew his DHR complaint. Id. ¶ 79. On July 11, 2012, Gilbert moved for summary judgment dismissing the Holdover Petition in Housing Court. Id. The Housing Court granted Gilbert’s motion based on the fact that he had removed Olive Oil from his apartment but stated that the Holdover Petition would be dismissed “without prejudice to either side’s claim for legal fees.” Id.

On July 26, 2012, DHR issued a determination finding probable cause to believe East River had violated Gilbert’s rights and referring the matter for a public hearing on November 26 and 27, 2012. Id. ¶ 80. On November 13, 2012, East River subpoenaed Dr! Gordon to testify at that hearing and to produce documents related to Gilbert’s need for an emotional support animal. Id. ¶ 81. Dr. Gordon thereafter “withdrew as Gilbert’s treating psychiatrist and from any involvement with his complaint,” which Gilbert consequently retracted. Id.

Gilbert submitted a second reasonable accommodation request on January 28, 2013, supported by reports from psychologists Lauren Barnett and Frederick Wooverton and psychotherapist Ruth Helfrich. Id. ¶ 82. Two days later, on January 25, 2013, East River moved to restore its eviction proceeding to the Housing Court calendar, seeking an award of attorney’s fees. Id. ¶ 83. On February 14, 2013, East River moved for an order deeming it to be the prevailing party in the Housing Court proceeding and for an award of legal fees, which the Housing Court granted on April 25, 2013. Id. In an order dated December 30, 2013, the Housing Court granted East River $30,087.29 in legal fees for its case against Gilbert. Id.

Meanwhile, on February 12, 2013, East River informed Gilbert that it had received his second reasonable accommodation request but could not make a determination without additional information and documentation, including “information about the credentials of Gilbert’s doctors, a list of Gilbert’s disability-related medications, sworn affidavits from mental health professionals providing detailed information about their treatment of Gilbert, and HI-PAA authorizations for the release of Gilbert’s mental health records.” Id. ¶ 84. On May 22, 2013, East River denied Gilbert’s reasonable accommodation request on the grounds that “a dog was not needed for Gilbert to ‘use and enjoy’ his apartment.” Id. ¶ 85. The letter also referenced Gilbert’s DHR complaint and stated, “Between the Housing Court Proceeding and the [DHR] case, the coop has incurred approximately $100,000 in legal fees,” adding that “under the terms of the proprietary lease, all of the legal fees incurred by the coop in connection with [Gilbert’s fair housing] complaint are billable, and payable, as ‘additional rent.’ ” Id.

Gilbert filed a second HUD complaint on May 30, 2013, claiming that East River had discriminated against him on the basis of disability and interfered with his exercise of rights under the FHA by “among other things, insisting that he produce unnecessary, excessive, and intrusive information” to support his claim. Id. ¶ 27. HUD investigated his complaint and determined that reasonable cause existed to believe that East River had discriminated against Gilbert and violated the FHA. Id. ¶¶ 28-29. On December 19, 2013, HUD issued a charge of discrimination against East River, which East River elected to have resolved in a federal civil action, pursuant to 42 U.S.C. § 3612(a). Id. ¶¶ 30-31.

D. The Instant Action

The Government filed its initial Complaint in this case on December 5, 2013, alleging that East River had discriminated against Stephanie Aaron by failing to make a reasonable accommodation to her disability. Doc. 1. On January 17, 2014, the Government filed an Amended Complaint, adding claims alleging that East River had discriminated against Eisenberg and Gilbert, retaliated against Gilbert, and violated § 3614 by engaging in a pattern or practice of discrimination or denying rights to a group of persons. Am. Compl. ¶¶ 86-97. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1345 and 42 U.S.C. §§ 3612(o) and 3614(a). Id. ¶¶ 4-5.

Three motions are presently before the Court: the Government’s motion to strike Defendant’s Second Affirmative Defense pursuant to Rule 12(f) of the Federal Rules of Civil Procedure (Doc. 22); Defendant’s motion for partial summary judgment with regard to the Aaron claims pursuant to Rule 56 of the Federal Rules of Civil Procedure and motion to sever the Government’s remaining causes of action, those pertaining to Gilbert and Eisenberg, pursuant to Rules 21 and 42(b) (Doc. 27); and Defendant’s motion to dismiss the Government’s Fifth Cause of Action pursuant to Rules 12(b)(6) or 12(c) of the Federal Rules of Civil Procedure, or alternatively for partial summary judgment pursuant to Rule 56 (Doc. 30).

II. The Government’s Motion to Strike Defendant’s Second Affirmative Defense

A. Legal Standard

“An affirmative defense is an ‘assertion of facts and arguments that, if true, will defeat the plaintiffs ... claim, even if all the allegations in the complaint are true.’ ” Tradewinds Airlines, Inc. v. Soros, No. 08 Civ. 5901(JFK), 2013 WL 6669422, at *2 (S.D.N.Y. Dec. 17, 2013) (quoting Black’s Law DICTIONARY 482 (9th ed.2009)). Although a court may strike “an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter,” Fed. R. Civ. P. 12(f), “courts should not tamper with the pleadings unless there is a strong reason for so doing.” Lipsky v. Commonwealth United Corp., 551 F.2d 887, 893 (2d Cir.1976). Motions to strike an affirmative defense are generally disfavored, County Vanlines Inc. v. Experian Info. Solutions, Inc., 205 F.R.D. 148, 152 (S.D.N.Y.2002), and “will not be granted unless it appears to a certainty that plaintiffs would succeed despite any state of the facts which could be proved in support of the defense.” Salcer v. Envicon Equities Corp., 744 F.2d 935, 939 (2d Cir.1984) (internal citation and quotation marks omitted), vacated and remanded on other grounds, 478 U.S. 1015, 106 S.Ct. 3324, 92 L.Ed.2d 731 (1986).

To prevail on a motion to strike, the moving party must satisfy a stringent three-pronged test: “(1) there must be no question of fact that might allow the defense to succeed; (2) there must be no substantial question of law that might allow the defense to succeed; and (3) the plaintiff must be prejudiced by the inclusion of the defense.” Specialty Minerals, Inc. v. Pluess-Staufer AG, 395 F.Supp.2d 109, 111 (S.D.NY.2005). In considering the first and second prongs, courts apply the same legal standard as that applicable to a motion to dismiss under Rule 12(b)(6). Coach, Inc. v. Kmart Corporations, 756 F.Supp.2d 421, 425 (S.D.N.Y.2010). The “sufficiency of a defense is to be determined solely upon the face of the pleading,” and the court “accepts as true all well-pleaded factual allegations and draws all reasonable inferences in the [non-moving party’s] favor.” Id. (internal citations and quotation marks omitted). In evaluating the third prong, the Court may consider whether inclusion of the legally insufficient defense would needlessly increase the “time and expense of trial” or “duration and expense of litigation.” Id. at 426 (citing Estee Lauder, Inc. v. Fragrance Counter, Inc., 189 F.R.D. 269, 272 (S.D.N.Y.1999)); see also S.E.C. v. McCaskey, 56 F.Supp.2d 323, 326 (S.D.N.Y.1999) (“An increase in the time, expense and complexity of a trial may constitute sufficient prejudice to warrant granting a plaintiffs motion to strike.”).

B. Discussion

In its Second Affirmative Defense, East River claims that this action was “improperly commenced” because HUD departed from its own guidelines while investigating the allegations underlying this action. Answer ¶¶ 103-11. As a result, Defendant claims, “the investigation conducted and completed by HUD violated the Defendant’s procedural and substantive due process rights,” and “a predicate to the commencement of this action, to wit, a proper determination by HUD, is absent from this case.” Id. ¶¶ 109-110. East River contends that these violations pose a complete defense to the Government’s complaint because it is possible that, had HUD afforded East River the process to which it was entitled, “no charges of discrimination may have resulted.” Def.’s Opp’n to PL’s Mot. to Strike at 6 (Doc. 39).

East River’s specific grievance is that HUD violated Chapters 7 — 5(F), 7-5(G), 7-5(J), and 7-6(B) of its Title VIII Intake, Investigation, and Conciliation Handbook (the “Title VIII Handbook”) by failing to speak with a representative of East River before making a determination about the complaints against it, and by failing to afford East River an opportunity to address evidence and statements obtained in connection with the investigation. Answer ¶¶ 105-07; see U.S. Dep’t of Hous. & URBAN Dev., Title VIII Complaint, Intake, Investigation, and Conoiliation HandbooK (8024.01, REV-2) § 7-5 (May 11, 2005), available at http://portal.hud. gov/hudportal/HUD?src=/program_ offices/administration/hudelips/handbooks/ fheo/80241 (last visited Feb. 17, 2015) (hereinafter “Title VIII Handbook;”).

In its motion to strike, the Government asserts that East River’s Second Affirmative Defense is legally and factually insuffi-. cient and that its inclusion would be prejudicial. The Government argues that East River’s claim regarding a “predicate to the commencement of this action” can only be construed as a challenge to the Court’s subject matter jurisdiction and that, to the extent that East River challenges the particulars of HUD’s investigation, that challenge is improper under the Administrative Procedure Act (“APA”). Gov’t’s Mem. Law in Snpp. Mot. to Strike at 5, 11 (Doc. 23). East River, however, states that the defense “does not involve the Court’s subject matter jurisdiction,” which East River concedes is not in issue, and rather “goes , to the very core of Plaintiffs case: whether there was a proper basis for HUD’s issuance of the charges of discrimination.” Doc. 39 at 2.

i. “Predicate to the Commencement of This Action”

East River argues that, as a result of HUD’s alleged departure from the procedures described in Subsections 7-5 and 7-6 of the Title VIII Handbook, a proper “predicate to the commencement of this action” is absent. Answer ¶ 110. This argument fails.

First, it is well established that HUD handbooks do not consist of binding regulations. Rather, “the various ‘handbooks’ and ‘booklets’ issued by HUD contain mere ‘instructions,’ ‘technical suggestions,’ and ‘items for consideration.’ ” Thorpe v. Hous. Auth. of City of Durham, 393 U.S. 268, 275, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969) (comparing non-binding HUD publications with binding HUD manuals). Particularly where, as here, the provisions of a handbook are not codified in the Federal Register, courts have interpreted them as providing guidance rather than binding obligations or legal duties.

But even if the Title VIII Handbook did dictate compulsory responsibilities for HUD investigators, East River’s allegations regarding the completeness and thor-. oughness of HUD’s investigation could not defeat the Government’s FHA claims in this case. To the contrary, the alleged deficiencies in HUD’s investigative process have no bearing on the legitimacy of this civil action commenced by the Department of Justice. See United States v. Lake Cnty. Bd. of Comm’rs, No. 2:04 Civ. 415, 2006 WL 1660598, at *2 (N.D.Ind. June 7, 2006) (“The sufficiency, methodology, and appropriateness of the HUD investigation are not relevant to the plaintiffs claims under the FHA .... ”); cf. United States v. Hillman Hous. Corp., 212 F.Supp.2d 252, 253 (S.D.N.Y.2002) (“Nothing in [FHA] § 3612(o) remotely suggests that [subject matter] jurisdiction is contingent on HUD’s compliance with the Act’s ... administrative procedural requirements.”). Tellingly, the Title VIII Handbook itself is “utterly silent regarding the Attorney General’s authority to bring this suit.” Doc.. 23 at 6.

In fact, the Department of Justice’s independent pursuit of a prosecution under the FHA is not contingent on the filing or existence of a HUD complaint, let alone the procedural details of a HUD investigation. Rather, the Attorney General may intervene in any civil action commenced by an aggrieved person if the case is of general public importance. 42 U.S.C. § 3613(e). Independent of any aggrieved person, the Attorney General may also file suit in any appropriate federal district court where there is reasonable cause to believe that a person or group of persons is engaged in a pattern of practice of resistance to the full enjoyment of rights granted by the FHA, or that a group of persons has been denied rights granted by the FHA and that such denial raises an issue of public importance, as the Government has alleged here. Id. § 3614(a). Although, in this particular case, the Government filed suit after receiving a referral from HUD, it could have brought an action even in the absence any HUD investigation, involvement, or referral.

Similarly, although this particular action arises from complaints filed with HUD, “[u]pon an incident of unlawful housing discrimination in New York, there are several avenues under both federal and state law through which an aggrieved person may seek relief.” Hous. Opportunities Made Equal, Inc. v. Diguilio, No. 98 Civ. 629S, 2000 WL 1481016, at *3-4 (W.D.N.Y. Sept. 27, 2000) aff'd 20 Fed.Appx. 67 (2d Cir.2001). Notably, an “aggrieved person” may sidestep HUD completely and simply file suit in federal district court, id. § 3613(a)(1)(A), and an aggrieved person who has filed a HUD complaint may commence a civil action even if that complaint results in an adverse finding. See Ramos v. U.S. Dep’t of Hous. & Urban Dev., No. 96 Civ. 5552(MGC), 1997 WL 589008, at *3 (S.D.N.Y. Sept. 19, 1997) (holding that a HUD determination that there was no reasonable cause to believe a discriminatory housing practice had taken place could not preclude an aggrieved party’s federal court civil suit) (citing 42 U.S.C. § 3613(a)(2)).

Correspondingly, to treat any purported errors in a HUD investigation as a complete defense to the Government’s allegations of housing discrimination in a case stemming from HUD complaints filed by aggrieved individuals would be to punish those individuals for seeking HUD’s assistance instead of pursuing independent legal actions. See Hillman, 212 F.Supp.2d at 254-55 (“The purpose of the [FHA] is to provide relief to victims of housing discrimination .... To hold that complainants who seek administrative assistance risk delay or loss of judicial relief by reason of agency procedural errors would channel those who feel they were victims of discrimination away from the administrative process.”); see also E.E.O.C. v. Hibbing Taconite Co., 266 F.R.D. 260, 273 (D.Minn. 2009) (holding that a defendant’s assertion that the Equal Employment Opportunity Commission (EEOC) improperly conducted an investigation, yielding “an unfair determination of reasonable cause” was insufficient as an affirmative defense and that “[wjhether the determination was made in error” was an issue that the EEOC would need to address at trial by “proving] to a fact-finder that the discrimination alleged in fact occurred”). It would be irrational to treat alleged missteps in a HUD investigation as complete defenses to a civil action in which a factfin-der will duly consider the merits of the Government’s claims.

ii. Due Process and the Administrative Procedure Act

East River also argues that, by “violating]” the Title VIII Handbook, HUD infringed on East River’s due process rights and that East River has been “substantially prejudiced” and deprived of “a full opportunity to respond to the charges against it.” Doc. 39 at 7, 16. However, to the extent that East River seeks review of HUD’s issuance of the charges of discrimination, this defense fails because the Administrative Procedure Act (“APA”) does not permit interlocutory review of non-final agency actions. Doc. 23 at 2.

Under the APA, only “[ajgency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.” 5 U.S.C. § 704. East River claims that it is “indisputable that HUD’s issuance of the charges of discrimination was its ‘final agency action’ within the meaning of the APA....” Doc. 39 at 2. However, according to the relevant case law, HUD’s issuance of a charge of discrimination is not a “final agency action.” See FTC v. Std. Oil Co. of Calif., 449 U.S. 232, 246, 101 S.Ct. 488, 66 L.Ed.2d 416 (1980) (Federal Trade Commission’s issuance of a complaint stating reason to believe company had violated the Federal Trade Commission Act was not a final agency action); Top Choice Distribs. v. U.S. Postal Serv., 138 F.3d 463, 467 (2d Cir.1998) (U.S. Postal Service’s issuance of an administrative complaint was not a final agency action and had “no effect except to force plaintiffs to respond, an effect that does not amount to a cognizable legal consequence”). Rather, a “final agency action” under the APA “must be one by which ‘rights or obligations have been de termined,’ or from which ‘legal consequences will flow.’ ” Bennett v. Spear, 520 U.S. 154, 178, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (quoting Port of Boston Marine Terminal Assn. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 27 L.Ed.2d 203 (1970)).

Additionally, HUD’s alleged departure from its internal guidelines could not have violated East River’s due process rights, because “an administrative investigation adjudicates no legal rights .... ” S.E.C. v. Jerry T. O'Brien, Inc., 467 U.S. 735, 742, 104 S.Ct. 2720, 81 L.Ed.2d 615 (1984). Instead, the Supreme Court has held that “when governmental action does not partake of an adjudication, as for example, when a general fact-finding investigation is being conducted, it is not necessary that the full panoply of judicial procedures be used.” Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960); see also Concrete Pipe & Prods. of Calif., Inc. v. Constr. Laborers Pension Trust for S. Calif., 508 U.S. 602, 618, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993) (“Where an initial determination is made by a party acting in an enforcement capacity, due process may be satisfied by providing for a neutral adjudicator to conduct a de novo review of all factual and legal issues.”) (internal citations and quotation marks omitted). The charges of discrimination that HUD issued after investigating each of the three Complainants’ cases merely stated that there was “reasonable cause” to believe East River violated the FHA, not that it definitely did so.

Following the issuance of a charge of discrimination by HUD, a respondent has the opportunity to defend itself in an adjudicatory proceeding before an administrative law judge or in federal district court. It is in those adjudicatory proceedings that a respondent’s due process rights are at stake. See S.E.C. v. Rivlin, No. 99-1455(RCL), 1999 WL 1455758, at *3 (D.D.C. Dec. 20, 1999) (holding that because an SEC investigation “clearly does not lead to an adjudication, but rather the filing of a[ ] complaint so that the court can adjudicate the matter ..., defendant is afforded due process rights through the adjudication before [the] court, and not during the investigation prior to the filing of the civil complaint”). Having elected to proceed in this Court, East River may respond to the Government’s allegations in the course of this action and has not been prejudiced barring a final determination on the merits. Am. Compl. at ¶¶ 21, 26, 31. Stated simply, this action is the due process to which Defendant is entitled.

iii. East River’s Second Affirmative Defense is so Insufficient as to Satisfy the Prerequisites of a Motion to Strike

In light of the above, there are no questions of fact or law that might allow the Second Affirmative Defense to succeed. The Title VIII Handbook imposes no binding obligations on HUD, but even if it did, HUD’s compliance with provisions of the Title VIII Handbook would be irrelevant to the merits of the Government’s claims against East River. To the extent that Defendant alleges a due process violation, it cannot succeed because HUD’s investigation and issuance of a charge of discrimination were not final agency actions that adjudicated East River’s legal rights.

Finally, to permit discovery into the propriety of the HUD investigation and to allow the actions of HUD’s investigators to be explored and criticized at trial would waste valuable time and resources in the course of this litigation, unnecessarily complicate the issues at stake in this case, and distract a jury. As the Government argues, “If East River were allowed- to proceed with discovery on the defense[], everyone connected with the HUD investigation would be a witness, expanding the documents and witnesses involved in the case, which would in turn mean greater time and expense and a greater need for Court intervention with respect to discovery issues.” Doc. 23 at 13. East River’s Second Affirmative Defense is so insufficient as to meet the high bar on a motion to strike. Consequently, the Government’s motion to strike Defendant’s Second Affirmative Defense is hereby GRANTED.

III. Defendant’s Motion for Partial Summary Judgment and to Sever the Complaint

A. Legal Standard

Summary judgment is only appropriate where the “materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, [and] other materials” show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a), 56(c). “An issue of fact is ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Senno v. Elmsford Union Free Sch. Dist., 812 F.Supp.2d 454, 467 (S.D.N.Y.2011) (citing SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir.2009)). A fact is “material” if it might affect the outcome of the litigation under the governing law. Id.

The party moving for summary judgment is first responsible for demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party meets its burden, “the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.” Saenger v. Montefiore Med. Ctr., 706 F.Supp.2d 494, 504 (S.D.N.Y.2010) (internal citation and quotation marks omitted). In deciding a motion for summary judgment, the Court must “construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir.2011) (quoting Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir.2004)). However, in opposing a motion for summary judgment, the non-moving party may not rely on unsupported assertions, conjecture or surmise. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir.1995). To prevail, “the non-moving party must set forth significant, probative evidence on which a reasonable fact-finder could decide in its favor.” Senno, 812 F.Supp.2d at 467-68 (citing Anderson v. Liberty Lobby, 477 U.S. 242, 256-57, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

“[S]ummary judgment should only be granted ‘[i]f after discovery, the nonmov-ing party has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof.’ ” Hellstrom v. U.S. Dep’t of Veterans Affairs, 201 F.3d 94, 97 (2d Cir.2000) (quoting Berger v. United States, 87 F.3d 60, 65 (2d Cir.1996)). Timing is key: “The nonmoving party must have had the opportunity to discover information that is essential to his opposition to the motion for summary judgment,” and “[o]nly in the rarest of cases may summary judgment be granted against a plaintiff who has not been afforded the opportunity to conduct discovery.” Id. (internal quotation marks and citations omitted). “Accordingly, ‘[t]he burden on the moving party is greater in cases where discovery is incomplete.’ ” Indergit v. Rite Aid Corp., No. 08 Civ. 11364(PGG), 2010 WL 1327242, at *3 (S.D.N.Y. Mar. 31, 2010) (quoting Saffire Corp. v. Newkidco., LLC, 286 F.Supp.2d 302, 306 (S.D.N.Y.2003)).

B. Discussion

In its motion for partial summary judgment, East River argues that the Aaron claims are precluded, under the doctrines of res judicata and collateral estoppel, and under New York Executive Law § 300, by (1) DHR’s initial no probable cause determination in its investigation of Aaron’s complaint and (2) the Appellate Division holding, in East River’s Article 78 proceeding, that DHR acted improperly when it reopened its file on Aaron after that initial determination. Doc. 29. This argument fails.

Pursuant to the Full Faith and Credit statute, 28 U.S.C. § 1738, federal courts are required “to give the same preclusive effect to state court judgments that those judgments would be given in the courts of the State from which the judgments emerged.” Kremer v. Chem. Const. Corp., 456 U.S. 461, 466, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982). This principle includes no exception for state court decisions “upholding a state administrative agency’s rejection of [a] ... discrimination claim as meritless when the state court’s decision would be res judicata in the state’s own courts.” Id. at 463, 102 S.Ct. 1883. Therefore, where a New York state court affirms a DHR no probable cause finding, § 1738 precludes federal litigation based on those facts determined by DHR, “provided that the procedures followed in coming to that determination satisfied the minimum constitutional requirements of the Due Process Clause.” Yan Yam Koo v. Dep’t of Buildings of City of New York, 218 Fed.Appx. 97, 98 (2d Cir.2007) (summary order) (citing Kremer, 456 U.S. at 481-82, 102 S.Ct. 1883).

Section 1738, however, does not apply to unreviewed state agency determinations. Univ. of Tennessee v. Elliott, 478 U.S. 788, 794, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986). Nevertheless, such determinations are frequently granted preclusive effect under federal common law. Id. at 797-99, 106 S.Ct. 3220. Specifically, unless Congress has expressed an intention to the contrary, “when a state agency ‘acting in a judicial capacity ... resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate,’ ... federal courts must give the agency’s factfinding the same preclusive effect to which it would be entitled in the State’s courts.” Id. at 799, 106 S.Ct. 3220 (quoting United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966)).

In New York, “the doctrines of res judicata and collateral estoppel are applicable to give conclusive effect to the quasi-judicial determinations of administrative agencies ... when rendered pursuant to the adjudicatory authority of an agency to decide cases brought before its tribunals employing procedures substantially similar to those used in a court of law.” Ryan v. New York Tel. Co., 62 N.Y.2d 494, 499, 478 N.Y.S.2d 823, 467 N.E.2d 487 (1984) (internal quotation marks and citations omitted). Within this framework, “federal courts in New York have undertaken the somewhat awkward task of anticipating what preclusive effect New York courts would afford-[a DHR] decision.” Vargas v. City of New York, No. 01 Civ. 7093(LAP), 2008 WL 361090, at *4 (S.D.N.Y. Feb. 7, 2008) (comparing Kosakow v. New Rochelle Radiology Assocs., 274 F.3d 706 (2d Cir.2001), with DeCintio v. Westchester Cnty. Med. Ctr., 821 F.2d 111 (2d Cir.1987), and Kirkland v. City of Peekskill, 828 F.2d 104 (2d Cir.1987)). At the heart of this inquiry is whether the administrative agency determination meets the requirements for res judicata and collateral estoppel under New York law. See Josey v. Goord, 9 N.Y.3d 386, 389-90, 849 N.Y.S.2d 497, 880 N.E.2d 18, 20 (2007) (res judicata); Staatsburg Water Co. v. Staatsburg Fire Dist., 72 N.Y.2d 147, 153, 531 N.Y.S.2d 876, 527 N.E.2d 754 (1988) (collateral estoppel).

Res judicata “precludes a party from litigating a claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter.” Josey, 9 N.Y.3d at 389-90, 849 N.Y.S.2d 497, 880 N.E.2d 18 (internal quotation marks and citation omitted). Under New York’s “transactional approach” to the doctrine of res judica-ta, “once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy.” O’Brien v. City of Syracuse, 54 N.Y.2d 353, 357, 429 N.E.2d 1158, 445 N.Y.S.2d 687 (1981). Therefore, res judi-cata “bars successive litigation based upon the same transaction or series of connected transactions ... if: - (i) there is a judgment on the merits rendered by a court of competent jurisdiction, and (ii) the party against whom the doctrine is invoked was a party to the previous action, or in privity with a party who was.” People ex rel. Spitzer v. Applied Card Sys., Inc., 11 N.Y.3d 105, 122, 863 N.Y.S.2d 615, 894 N.E.2d 1 (2008) (internal quotation marks and citations omitted).

“Collateral estoppel is a narrower species of res judicata ... that holds that, as to the parties in a litigation and those in privity with them, a judgment on the merits by a court of competent jurisdiction is conclusive on the issues of fact and questions of law necessarily decided therein in any subsequent action.” Vargas, 2008 WL 361090, at *4 (internal quotation marks, citations, and alterations omitted). “Whether the prior adjudication occurred in the context of an administrative determination ... or a full-fledged judicial proceeding,” collateral estoppel is applicable only if (1) “there is an identity of issue which has necessarily been decided in the prior action and is decisive of the present action,” and (2) the party or one in privity had “a full and fair opportunity to contest the decision now said to be controlling.” Staatsburg, 12 N.Y.2d at 153, 531 N.Y.S.2d 876, 527 N.E.2d 754 (internal quotation marks and citation omitted). “The litigant seeking the benefit of collateral estoppel must demonstrate that the decisive issue was necessarily decided in the prior action against a party, or one in privity with a party.... The party to be precluded from relitigating the issue bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination.” Buechel v. Bain, 97 N.Y.2d 295, 303-04, 740 N.Y.S.2d 252, 766 N.E.2d 914 (2001).

Both res judicata and collateral estoppel are “flexible doetrine[s],” not to be “mechanically applied” merely because some of the “formal prerequisites” for application are present. See People v. Roselle, 84 N.Y.2d 350, 357, 618 N.Y.S.2d 753, 643 N.E.2d 72 (1994). Courts will only “apply res judicata to an administrative decision ... [if] to do so would be consistent with the function of the administrative agency involved, the peculiar necessities of the particular case, and the nature of the precise power being exercised.” Josey, 9 N.Y.3d at 389-90, 849 N.Y.S.2d 497, 880 N.E.2d 18 (internal quotation marks and citations omitted). For collateral estoppel, “the fundamental inquiry is whether relitigation should be permitted in a particular case in light of ... fairness to the parties, conservation of the resources of the court and the litigants, and the societal interests in consistent and accurate results. No rigid rules are possible, because even these factors may vary in relative importance depending on the nature of the proceedings.” Staatsburg, 72 N.Y.2d at 153, 531 N.Y.S.2d 876, 527 N.E.2d 754 (citations omitted); see also Buechel, 97 N.Y.2d at 304, 740 N.Y.S.2d at 257, 766 N.E.2d at 919 (“The equitable doctrine of collateral estoppel is grounded in the facts and realities of a particular litigation, rather than rigid rules.”).

i. The Appellate Division’s Article 78 Decision is Not Entitled to Preclu-sive Effect Under New York Executive Law § 300, Res Judicata, or Collateral Estoppel

Under § 1738, once a state court has “reviewed and affirmed [a DHR] finding of no probable cause,” preclusive effect will attach so long as the DHR and judicial proceedings provided the aggrieved party with due process. Yan Yam Koo, 218 Fed.Appx. at 99; see also Kremer, 456 U.S. at 482-83, 102 S.Ct. 1883. State court review of a DHR determination also bars relitigation pursuant to New York Executive Law § 300, which provides that “the final determination of a discrimination case decided by [DHR] and reviewed by the state court ‘shall exclude any other action, civil or criminal, based on the same grievance of the individual concerned.’ ” Kendall v. Avon Products, Inc., 711 F.Supp. 1178, 1181 (S.D.N.Y.1989) (citing N.Y. Exec. Law § 300). East River argues that the Government is precluded from bringing the Aaron claims under both 28 U.S.C. § 1738 and § 300 of the Executive Law by the State Appellate Division decision in the Article 78 proceeding that East River itself commenced against DHR. Doc. 29 at 4-6, 8-17.

However, contrary to Defendant’s arguments, the Appellative Division’s Article 78 decision does not constitute judicial review of DHR’s determination regarding Aaron and, consequently, has no preclusive effect in this case. In its concise opinion, the Appellative Division held only that it was improper of DHR to dismiss Aaron’s complaint for “administrative convenience” after issuing a finding of no probable cause and closing Aaron’s file on that basis. Doc. 28, Ex. BB. The Appellate Division did not engage with the merits of DHR’s initial no probable cause finding. See Wrenn v. Verizon, 106 A.D.3d 995, 965 N.Y.S.2d 362, 363 (2d Dep’t 2013) (distinguishing “administrative convenience” from dismissal on the merits).

Although Defendant repeatedly attempts, in its submissions to this Court, to categorize the Appellate Division decision as one on the merits of Aaron’s claims, Defendant’s efforts are unavailing. The Appellate Division decision, issued after the commencement of this action, addressed DHR’s administrative practices and procedures rather than any allegations of discrimination on the part of East River. It states that DHR’s decision to dismiss Aaron’s complaint on the basis of administrative convenience “was made after DHR completed its investigation of the complaint, made factual findings, and dismissed the complaint upon a finding that there was no probable cause to believe that East River had engaged in the complained of discriminatory conduct.” Doc. 28, Ex. BB at 46. Yet it says nothing regarding the soundness of DHR’s initial investigation, the appropriateness of its findings, or the merits of its no probable cause determination. In its decision, the Appellate Division evaluated only DHR’s conduct, not East River’s. The parties to that proceeding were East River and DHR, not Aaron, nor was Aaron in privity with either party in that proceeding. Unlike the cases cited by East River in support of its argument in favor of preclusion, no state court weighed in on the legal merit of Aaron’s complaint or DHR’s legal finding. See, e.g., Mitchell v. Natl Broad. Co., 553 F.2d 265, 276 (2d Cir.1977) (“[I]n this case, five judges of New York State’s second highest court reviewed the agency’s legal finding.”). Consequently, neither res judicata nor collateral estoppel applies to that decision.

For the same reasons, New York Executive Law § 300 does not bar the Government from pursuing the Aaron claims. Def.’s Mem. Law Supp. Mot. for Partial Summ. J. at 3 (Doc. 29). Defendant argues that § 300 “unambiguously prohibits any person or entity, including the United States of America, from pursuing a claim and/or action relating to a claim of discrimination that has been decided by DHR and reviewed by a New York State Court” and that the provision is an “absolute bar” on the Government’s claims regarding Stephanie Aaron. Doc. 28 at ¶¶ 87-90 (emphasis in original). Defendant’s interpretation of § 300 is over-broad, and Defendant’s description of the Appellate Division decision is inaccurate.

In fact, § 300 is an “election of remedies” provision pursuant to which a “plaintiff must choose one forum to the exclusion of the other.” See Bishop v. Henry Modell & Co., No. 08 Civ. 7541(NRB), 2009 WL 3762119, at *7 (S.D.N.Y. Nov. 10, 2009), aff'd sub nom. Bishop v. Henry Modell & Co., 422 Fed.Appx. 3 (2d Cir. 2011). It does not bar the Government’s action for two reasons: (1) Section 300 applies only to aggrieved parties, and (2) it applies only to aggrieved parties who have sought judicial review of an agency determination. See Rio v. Presbyterian Hosp. in City of New York, 561 F.Supp. 325, 327 (S.D.N.Y.1983) (citing N.Y. EXEC. LAW §§ 297(9), 300); Jainchill v. New York State Human Rights Appeal Bd., 83 A.D.2d 665, 442 N.Y.S.2d 595 (App.Div.1981) (“A permanent barrier to the filing of a complaint would have arisen only if petitioner had commenced a proceeding for judicial review of the final administrative determination ....”) (citing N.Y. EXEC. LAW §§ 297(9), 300). Had Aaron pursued judicial review of the merits of DHR’s initial no probable cause determination and then filed suit in this Court, § 300 might have precluded her ability to seek relief. However, Aaron sought no such review, and Aaron is not the plaintiff in this action.

Accordingly, the Appellate Division decision in East River’s Article 78 proceeding is entitled to no preclusive effect in this action, either undér 28 U.S.C. § 1738 or New York Executive Law § 300.

ii. The Preclusive Effect of Unre-viewed State Agency Findings Under the FHA

Defendant also argues that the Government’s claims regarding Stephanie Aaron are precluded by DHR’s initial no probable cause determination, which, as this Court has found, has not been reviewed by any court. As stated above, the general rule, set forth by the Supreme Court in University of Tennessee v. Elliott, is that “when a state agency acting in a judicial capacity ... resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, ... federal courts must give the agency’s factfind-ing the same preclusive effect to which it would be entitled in the State’s courts.” 478 U.S. at 799, 106 S.Ct. 3220 (internal quotation marks omitted).

However, “[tjhere are ... exceptions to this broadly stated rule.” Sikri v. Gilmore, No. 97 Civ. 2367(BSJ), 1999 WL 156385, at *2 (S.D.N.Y. Mar. 23, 1999). For example, the Supreme Court has held that Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Age Discrimination in Employment Act (ADEA) both “evidence Congress’ intent to provide plaintiffs with a trial de novo in the federal courts, abrogating the common law rule that collateral estoppel applies to state administrative agencies’ ‘judicial’ determinations.” Id. (citing Elliott, 478 U.S. at 799, 106 S.Ct. 3220); see also Astoria Fed. Sav. & Loan v. Solimino, 501 U.S. 104, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991) (unre-viewed findings of state agencies have no preclusive effect on federal proceedings under the ADEA); Smith v. Perkins Bd. of Educ., 708 F.3d 821, 827-28 (6th Cir.2013) (“[Ujsing Elliott and Solimino as a guide, we find that common law collateral estoppel principles do not apply to claims brought under the ADA because Congress has demonstrated its intent that unre-viewed state administrative findings not have preclusive effect in this statutory context.”); Joseph v. Athanasopoulos, 648 F.3d 58, 64 n. 6 (2d Cir.2011) (explaining that “no distinction” exists between the ADA and Title VII to justify a different outcome regarding preclusion).

Accordingly, where the language of a statute “would make little sense ... if state agency findings were entitled to pre-clusive effect ... in federal court,” no such preclusive effect should be granted. Elliott, 478 U.S. at 795, 106 S.Ct. 3220 (citing Kremer, 456 U.S. at 470 n. 7, 102 S.Ct. 1883). However, where a statutory scheme indicates no intent to abrogate common law principles of preclusion, the unreviewed findings of state administrative agencies may preclude, litigation in federal •court. See id. at 796-97, 106 S.Ct. 3220 (holding that, unlike Title VII, § 1983 indicated no congressional intent “to contravene the common-law rules of preclusion”) (citing Allen v. McCurry, 449 U.S. 90, 97-98, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980)); Crossroads Cogeneration Corp. v. Orange & Rockland Utilities, Inc., 159 F.3d 129, 135 (3d Cir.1998) (“Unlike [Solimino ] or Elliott, we find no provision of [the Public Utility Regulatory Policies Act] that seeks to limit common law rules of preclusion from applying to state agency decisions relating to utility regulation.”).

The “threshold question,” therefore, with regard to East River’s assertion that the Aaron claims are precluded by DHR’s initial no probable cause finding, is whether, in enacting the FHA, “Congress expressly or implicitly limited the preclusive effect to be given to the determinations of state administrative agencies.” Kosakow, 274 F.3d at 728 (considering the preclusive effect of a DHR determination on a subsequent federal action under the Family and Medical Leave Act); see also Solimino, 501 U.S. at 108, 111 S.Ct. 2166 (“[T]he question is not whether administrative es-toppel is wise but whether it is intended by the legislature.”); Kosereis v. Rhode Island, 331 F.3d 207, 212 (1st Cir.2003) (“Even if state courts apply res judicata to state administrative decisions, federal courts will only follow suit if doing so is consistent with Congress’ intent in enacting the federal s