Judge Scott Fairgrieve
Landlord sued to recover possession of the subject premises, and moved to strike tenant's counterclaims arguing the lease contained a "no counterclaim" provision. The court stated a provision in a commercial lease precluding a tenant from asserting counterclaims has been upheld. Yet, it noted the rule was not absolute where the counterclaim was so inextricably intertwined with a landlord's claim for rent or possession, the counterclaims would not be stricken. The court found tenant's counterclaim of actual or constructive eviction was inextricably intertwined with landlord's nonpayment suit. Tenant claimed village zoning regulations prohibited him from operating his business. The court noted the lease placed the burden on tenant to investigate zoning laws that may prohibit use of the premises, stating tenant's failure to comply with the zoning laws violated its obligations under the lease. Also, tenant made no attempts to obtain an exception to the laws, thus absent facts showing tenant appealed to the zoning board and was denied, tenant assumed the risk of the zoning law and could not complain of the alleged illegality. Hence, tenant's counterclaim was denied, and it was not entitled to receive previously paid rent.
