Judge Susan Kettner
Landlord Avalon Bay Communities moved for dismissal of tenant’s counterclaims in this non-payment suit based on a lease provision barring counterclaims in summary proceedings. Avalon argued that as it withdrew the non-payment petition upon tenant’s payment before a hearing, tenant’s counterclaims did not fall into the exception of being inextricably bound to a non-payment action. The court disagreed finding that once issue was joined a petition could not be withdrawn, except with leave of court, which was denied. It also noted courts routinely declined to enforce "no counterclaim" clauses where the issues raised in the counterclaims were "inextricably intertwined." The court ruled the issue of the amount actually owed by tenant, if any, could not be separated from the initial non-payment claim, noting the amount of legal fees set forth in the original non-payment claim was not waived and continued to be applied to tenant’s rental balance on an on-going basis causing a potentially never-ending dispute. It concluded the counterclaims were inextricably intertwined with the non-payment claim, thus, denied Avalon’s motion to withdraw its petition and dismiss tenant’s counterclaims.