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Decided on February 15, 2013
New Rochelle City Ct

LT 2040-12
MICHAEL N. McCARTHY, ESQ. Law Offices of Michael N. McCarthy, P.C. 7 Pine Ridge Drive Smithtown, NY 11787 Attorney for Petitioner JASBRINDER SAHNI, ESQ.
Legal Services of the Hudson Valley
100 East 1st Street, 8th floor
Mount Vernon, NY 10550
Attorney for Respondent Yolande Guei
Susan I. Kettner, J.
In this summary proceeding for nonpayment of rent, petitioner moves for dismissal of respondent's counterclaims, based upon the lease provision barring counterclaims in summary proceedings. Petitioner further argues that since it withdrew the nonpayment petition upon respondent's payment prior to a hearing, respondent's counterclaims do not fall into the exception of being inextricably bound to a nonpayment because the proceeding has been withdrawn.
Respondent argues for summary judgment based upon documentary evidence that petitioner overcharged respondent in applying respondent's rental payments to legal/attorney fees [*2]and other allegedly improper miscellaneous charges that were not due. Specifically, respondent alleges that it was overcharged for attorney fees in the amount of $3,900.00, which represents legal/attorney fees of $450.00 for each of the several nonpayment proceedings where petitioner was not the prevailing party and where petitioner did not request fees and costs from the court. In addition, respondent avers that they were improperly charged late fees of $75.00 even though no rent was outstanding and that they were also billed for other fees that they were not obligated to pay. Respondent also argues that petitioner has improperly applied respondent's rental payments toward the payment of the improperly charged legal fees/costs which, in turn caused the rent history to incorrectly reflect that respondent was in arrears. Respondent further contends that the overcharge counterclaims go right to the essence of the nonpayment proceeding insofar at the claim affects the ultimate findings with respect to the amount (if any) ultimately owed by respondent.
DISCUSSION

As a threshold issue, the Court must decide whether it has jurisdiction to hear respondent's counterclaims when petitioner's petition has been withdrawn. It is well settled that upon the filing of an answer, issue is joined. Once issue is joined, a petition may not be withdrawn except upon leave of court. CPLR

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