These proceedings are ripe for consolidation. All the respondents are tenants in the same building, located at 1202 Avenue K in Brooklyn. All the proceedings are for nonpayment of rent and allegedly involved building-wide defective conditions, including lack of heat and hot water, leaks and lack of painting and plastering. All respondents are being sued for alleged arrears in rent involving the same time period, and all have raised identical defenses, including breach of the warranty of habitability, repair and setoff, payment, res judicata and collateral estoppel. Put simply, these 23 respondents are apparently engaged in a concerted rent-withholding action, better known as a “rent strike”. The conclusion that these proceedings involve “a common question of law or fact” (CPLR 602, subd [a]) in “all actions and proceedings pending * * * as to any building” (CCA 110, subd [b]) is thus inescapable.
Notably, petitioner does not dispute consolidation in its answering papers but instead cross-moves to strike respondents’ jury demands. To support its position, petitioner has produced copies of written leases for 11 of the 23 respondents, 10 of which plainly contain jury waiver clauses.* As petitioner points out, it is settled law that a knowing and intentional jury waiver in a lease will be upheld in summary proceedings for nonpayment of rent. (Avenue Assoc. v Buxbaum, 83 Misc 2d 719.) However, because the right to trial by jury is fundamental, courts indulge every reasonable presumption against a finding of waiver. {Aetna Ins. Co. v Kennedy, 301 US 389.) The burden of proving a waiver rests upon the party seeking to enforce it. (Williams v Mascitti, 71 AD2d 813; L.G.J.K. Realty Corp. v Hartford Fire Ins. Co., 48 AD2d 670; Holrod Assoc. v Tomanovitz, 117 Misc 2d 371.)