Milton Schulman is the rent-controlled tenant of record of apartment 16/17B, a duplex, and the rent-stabilized tenant of record of apartment 16A. Both apartments are located at 737 Park Avenue in New York County. Apartments 16/17B and 16A have been combined into a single unit for over 28 years. Milton Schulman has vacated the premises, although exactly when is disputed. Eric Schulman, Milton Schulman's grandson, now occupies the apartments. In a letter that Kenneth Schulman, Milton Schulman's power of attorney, sent to petitioner on November 13, 2006, Eric Schulman claims the right to succeed to all the apartments.

Petitioner in this nonprimary-residence holdover proceeding denies that Eric Schulman has any succession rights and moves for summary judgment to evict him and to receive market-rate use and occupancy plus interest from February 1, 2007. Eric Schulman cross-moves for summary judgment on the ground that the petition supposedly improperly identifies the premises, which mentions only apartment 16A and not apartment 16/17B.

Petitioner further moves to consolidate this proceeding, which concerns apartment 16/17B ("Proceeding No.1"), with a licensee holdover proceeding for apartment 16A ("Proceeding #2"). That licensee proceeding, Katz 737 Corporation v Eric Schulman, Index No. L & T 54945/08, is pending in Part H of this court.

Petitioner also asks this court to vacate Eric Schulman's demand for a bill of particulars and to strike his jury demand. Eric Schulman argues that the bill of particulars is necessary to obtain dates and specifics of petitioner's allegations. He also disputes the validity of the jury-waiver clause in the 1959 lease that Milton Schulman executed.

The issues are whether the court should consolidate Proceedings #1 and #2; whether summary judgment should be granted to petitioner or to Eric Schulman or denied to both; [*2]whether the bill of particulars demand is valid; and whether the jury demand should be stricken or upheld.

Consolidation

Consolidating Proceeding #1 with Proceeding # 2 is proper. The court has the discretion to consolidate matters that involve common questions of law or fact and to avoid unnecessary cost or delay, unless the party opposing the motion demonstrates prejudice to a substantial right. (CPLR 602 [a]; Civ Ct Act § 110 [b]; Geneva Temps, Inc. v New World Communities, Inc., 24 AD3d 332, 334 [1st Dept 2005 mem]; Phoenix Garden Rest. Inc. v Chu, 202 AD2d 180, 180 [1st Dept 1994 mem].) Even though Proceeding #1 involves apartment 16/17B and Proceeding # 2 involves only apartment 16A, both apartments are combined into a single living space, and the combined apartments are the subject of both proceedings. In both proceedings Eric Schulman claims succession rights to all the apartments. The attorneys are the same in each proceeding. Consolidation will not prejudice Milton Schulman. He has already vacated the premises and left Eric Schulman as the primary occupant.

Eric Schulman contends that because Milton Schulman is not named as a respondent in Proceeding #2, there is no identity of the parties. He also argues that there is no cause of action in Proceeding #2 because Milton Schulman is not named as a respondent and that consolidation is impossible because the proceeding should be dismissed on that ground. The court finds that Milton Schulman need not be named as a respondent in Proceeding #2. Only Eric Schulman must be named respondent in both proceedings, and he has been. Therefore, there is identity of the parties in both proceedings and a cause of action in Proceeding #2. Consolidation is appropriate. Milton Schulman has permanently vacated all the apartments and is not a licensor in apartment 16A.

Eric Schulman's arguments about the identity of the parties and no cause of action derive from a different, and now completed, proceeding, Katz 737 v Schulman,L & T 55221/07. Petitioner commenced that proceeding to recover possession of apartment 16A on the ground that Milton Schulman had allegedly refused to sign and return the renewal lease for apartment 16A. On May 2, 2007, the Hon. Peter M. Wendt so-ordered a stipulation that provided that Kenneth Schulman, Milton Schulman's power of attorney, and petitioner would sign the renewal lease. It also provided that the proceeding would be discontinued without prejudice to petitioner's claim that Milton Schulman did not primarily reside in the apartment. Petitioner and Kenneth Schulman signed a renewal lease dated September 29, 2006, that renewed Milton Schulman's lease for apartment 16A for two years, from January 1, 2007, to December 31, 2008. Eric Schulman argues that the November 2006 letter in which Milton Schulman surrenders possession, is invalid and, thus, that Milton Schulman did not surrender possession of the apartments. Kenneth Schulman letter to petitioner states that Milton Schulman had permanently vacated the apartments and that Eric Schulman had the right to the apartments in his own name.

Eric Schulman argues that the November 2006 letter is invalid because the renewal lease [*3]was signed after the court so-ordered the May 2007 stipulation and because it was sent before the renewal lease was signed. But even if the renewal lease was signed after the letter was sent, Milton Schulman nonetheless surrendered possession of the apartment under the November 2006 letter. Kenneth Schulman's signature on the renewal lease is dated September 29, 2006. That rendered valid the November 2006 letter. Milton Schulman has permanently vacated the apartments. In this proceeding, Eric Schulman claims the right to succeed, and in Proceeding #2 the court assumes that Eric Schulman claims the right to succeed under the November 2006 letter.

For a family member to claim the right to succeed, the record tenant must have completely surrendered the premises. (See United E. LLC v Churi, 2008 NY Slip Op 28090 [Hous Part, Civ Ct, NY County 2008].) Because Milton Schulman surrendered possession of the premises, he is no longer a licensor, and petitioner did not need name him as a respondent in Proceeding #2. Pending any motion practice on Proceeding #2, the court finds at this preliminary stage that Milton Schulman need not have be named as a respondent in Proceeding #2. There is an identity of the parties, therefore, because Eric Schulman is named as a respondent in both proceedings.

Eric Schulman argues that petitioner's order to show cause seeking consolidation is procedurally defective because it does not contain the pleadings or an affidavit from someone with personal knowledge of the relief sought. The court disagrees. Pleadings need not be attached to an order to show cause. (CPLR 2214 [c].) The moving party in an order to show cause is not required to furnish papers already in the court's possession. This court already possess the pleadings. Nor is petitioner's failure to annex an affidavit fatal. Petitioner's counsel annexed to the order to show cause an affirmation stating procedural facts for consolidating. Petitioner's counsel avers having personal knowledge of the facts in her affirmation.

Eric Schulman argues that the notice to quit and petition from Proceeding #2 were improperly served and that because the petition should be dismissed, consolidation is impossible. Eric Schulman's argument is based on the fact that the notice to quit and petition were served on Eric Schulman in apartment 17B, which is not the apartment sought to be recovered in Proceeding #2. The apartment to be recovered in that proceeding is apartment 16A. This argument fails because apartment 16/17B and 16A are combined into a single unit.

The notice to quit in Proceeding #2 was served timely. The parties agree that Eric Schulman was personally served on January 22, 2008. Eric Schulman's argument that petitioner had to add five days for mailing before the date of the notice to quit became effective is academic. Notices filed under RPAPL 735, moreover, do not require an additional five days. (Skyview Holdings, LLC v Cunningham, 13 Misc 3d 102, 104 [App Term, 1st Dept 2006, per curiam].)

Eric Schulman's argument about the equitable doctrine of laches must fail. He argues that laches bars the order to show cause requesting consolidation because petitioner took too long to [*4]make the motion and because petitioner commenced Proceeding #2 a full year after this proceeding began. Eric Schulman was forced to defend two earlier cases against 16A; both cases are now completed. He also had to oppose petitioner's voluminous summary-judgment motion in this proceeding.

To establish a defense of laches, Eric Schulman must demonstrate not only petitioner's delay requesting consolidation or starting Proceeding #2 but also an injury or prejudice if the consolidation is granted. (75A NY Jur 2d Limitations and Laches 369.) Delay without actual prejudice does not give rise to the defense of laches. (See eg. Matter of Ricciardi v Johnstown Leather, 1 AD3d 661, 663 [1st Dept 2003 mem].) Even though petitioner took a year to start Proceeding #2 after this proceeding was commenced and even though Eric Schulman had to answer petitioner's voluminous summary-judgment motion, Eric Schulman has not shown actual prejudice, and mere delay does not constitute laches. (Macon v Arnlie Realty Co., 207 AD2d 268, 271 [1st Dept 1994 mem].) Additionally, mere delay is insufficient to deny consolidation. (Raboy v McCrory Corp., 210 AD2d 145, 147 [1st Dept 1994 mem].) That Eric Schulman had to respond the summary-judgment motion is not prejudice. Petitioner has not changed its position in this proceeding or in Proceeding #2 or been otherwise disadvantaged by it. The delay in starting Proceeding #2 and in moving to consolidate the proceedings has not prejudiced Eric Schulman's ability to defend his interests, and judicial economy would be served by trying these two cases together. Courts favor consolidation in the interest of judicial economy and ease of decision making, where, like here, common questions of law and fact arise, unless the opposing party demonstrates prejudice upon consolidation. (See Amcan Holdings, Inc. v Torys LLP, 32 AD3d 337, 338 [1st Dept 2006 mem].)

Eric Schulman argues that consolidating is improper because the procedural postures of the two proceedings are different. Proceeding #1 awaits this decision, while Proceeding #2 is stayed awaiting this decision. As will be discussed below, the court will deny summary judgment to both parties in this proceeding. This proceeding has not been placed on the trial calendar. It has not even advanced to the disclosure phase. (See Cronin v Sordoni Skanska Constr. Corp., 36 AD3d 448, 449 [1st Dept 2007 mem]; Abrams v Port Auth. Trans-Hudson Corp., 1 AD3d 118, 119 [1st Dept 2003 mem].) Thus, Proceedings #1 and #2 are in stages that can be easily coincided. Upon consolidation, disclosure can cure any alleged prejudice to Eric Schulman arising from different procedural stages. (See Collazo v City of New York, 213 AD2d 270, 271 [1st Dept 1995 mem] [finding that consolidation would be appropriate even if one of the cases was in the trial calendar and that expedited disclosure would avoid prejudice].) In addition, consolidation will not result in undue delay for any of the two proceedings; neither is in the disclosure stage. (Cf. Barnes v Cathers & Dembrosky, 5 AD3d 122, 122 [1st Dept 2004 mem] [finding that consolidation would result in undue delay because the two actions in that case were at different stages of disclosure].)

Eric Schulman argues that the Hon. Joseph Capella's decision of December 12, 2003, issued in a different proceeding involving the same parties entitled Katz 737 v Schulman, L & T 79566/07, bars consolidation based on collateral estoppel, or issue preclusion. That proceeding [*5]is now completed. In that proceeding, petitioner alleged that Milton Schulman had illegally sublet apartment 16A to Eric Schulman. Judge Capella decided that the petition inaccurately described apartment 16A. Judge Capella found that because apartments 16A and 16/17B are combined into a single residence, it would be impossible for a Marshal physically to locate and take possession of apartment 16A without resorting to outside information. Judge Capella noted that in his case, unlike here, no motion to consolidate was before him, except as raised improperly for the first time in petitioner's reply papers.

Collateral estoppel precludes a party from relitigating in a later proceeding an issue raised in an earlier proceeding and decided against that party or those in privity. The party invoking collateral estoppel must show that the identical issue has been decided in the earlier proceeding and is decisive in the current pleading and that there was a full and fair opportunity to contest the decision now said to be controlling. (Buechel v Bain, 97 NY2d 295, 304 [2001], cert denied 535 US 1096 [2002].) The issue Judge Capella decided was whether a Marshal may execute a warrant of eviction based on a petition with an inaccurate description. In Proceeding #2, the issue of the inaccurate description no longer controls. Petitioner attached a detailed diagram of apartment 16A. Additionally, the issue of the inaccurate description will become academic upon consolidating.

Eric Schulman also argues that petitioner waived its right of possession by virtue of collecting rent, or use and occupancy, for the period after November 13, 2006. The court disagrees. A landlord that accepts rent with knowledge of a particular conduct claimed to be a default waives his right to terminate the lease on such a default, unless the landlord promptly demanded correction of the disputed conduct, in which case waiver is a question of fact. (Madison Ave. Leasehold, LLC v Madison Bentley Assocs., LLC, 30 AD3d 1, 6 [1st Dept], affd 8 NY3d 59 [2006].) On November 2006, Milton Schulman, through his power of attorney, sent a letter to petitioner surrendering apartments 16/17B and 16A and requesting that the lease appear under Eric Schulman's name.

Petitioner states in the order to show cause seeking consolidation that after it received the November 2006 letter, petitioner requested from Milton and Eric Schulman evidence to support the claim that Eric Schulman has the right to the apartments. Petitioner received no response. In addition, after receiving the November 2006 letter, petitioner refused to renew Milton Schulman's lease for apartment 16A for the period after December 31, 2006. In early February 2007, petitioner commenced Katz 737 v Schulman,L & T 55221/07. The court so-ordered a stipulation in that proceeding in May 2007; that obliged petitioner to renew the lease. The renewal was dated September 2006. In early February 2007, petitioner commenced this proceeding. In July 2007, petitioner commenced Katz 737 v Schulman, L & T 79566/07, and in February 2008 petitioner commenced Proceeding #2. This shows petitioner's prompt intention to correct what he claims is a default: Eric Schulman's unlawful possession of the apartments. Thus, petitioner did not waive his opportunity to seek possession by accepting rent after November 2006.

[*6]Summary Judgment

Summary judgment cannot be granted to petitioner. Material issues of fact are in dispute. (See Andre v Pomeroy, 35 NY2d 361, 364 [1974].) In light of the disputed affidavits, material issues of fact must be resolved at trial. (See Matter of Pollock, 64 NY2d 1156, 1158 [1985 mem].) The trier of fact must determine whether Eric Schulman's Attention Deficit Hyperactivity Disorder, Dyslexia, Dygraphia, and Dysnemuria substantially limit one of his major life activities. Then, depending on the success of his disability claim, the court must resolve whether Eric Schulman and Milton Schulman shared the apartment for over a year as their primary residence. These two issues are material to assigning succession rights to Eric Schulman. The disability standard allowing succession after one year's co-occupancy rather than two is the same for rent-controlled and rent-stabilized apartments. (See 9 NYCRR 2204.6 [d] [1]); NYCRR 2523.5 [b] [4].)

Petitioner and Eric Schulman dispute whether Eric Schulman's disorders constitute a substantial limitation such that Eric Schulman's occupancy with Milton Schulman for one year and not two years ought to entitle Eric Schulman to succeed to the tenancy. Eric Schulman concedes that he is able to live independently; that he currently works full time at Fisher Brothers, a real-estate firm; and that he graduated from Babson University. But he contends that his disabilities impair his social, educational, and employment activities. Petitioner argues that these impairments are insufficient in that they do not substantially limit Eric Schulman from performing any major life activity. The trier of fact must determine whether these impairments constitute a substantial limitation under § 2204.06 (d) (3) (iii). This court cannot do so on the cold record.

Both petitioner and respondent also dispute whether Eric Schulman and Milton Schulman shared apartments 16/17B and 16A from August 2005 to October 26, 2006, as their primary residence. Neither side disagrees that Eric Schulman inhabited apartment 16/17B and 16A during this time as his primary residence. The parties, however, offer conflicting arguments about whether Milton Schulman lived in the apartment as his primary residence during this period. The trier of fact must determine whether Milton Schulman lived in apartments 16/17B and 16A from August 2005 to October 26, 2006, as his primary residence.

Eric Schulman's cross-motion for summary judgment is also denied. The petition improperly describes the premises because it does not clearly identify apartment 16/17B from 16A. No diagram for the apartment is annexed to the petition, and thus the warrant of eviction cannot properly be executed if a judgment of possession is awarded to petitioner. Consolidating Proceedings #1 and #2 will bring all the apartments and their descriptions into one proceeding. This renders Eric Schulman's argument academic.

Bill of Particulars

Eric Schulman's demand for a bill of particulars containing 11 separately numbered items [*7]is denied. Items 1, 2, and 7 are academic because consolidation brings both apartments (16/17B and 16A) into this proceeding. With respect to item 8, Eric Schulman has a copy of the lease. It is attached to petitioner's notice of motion. Item 9, referring to the costs of the proceeding, is inappropriate for a bill of particulars. Items 3, 4, 5, 6, 10, and 11 seek evidentiary material. These items seek the source of petitioner's information about its basis to bring this holdover, names of potential witnesses, details of documents, and dates and times of events, among other things. The purpose of a bill of particulars is to amplify the pleadings, limit the proof, and prevent surprise at trial, not to provide evidentiary material. (CPLR 3042; Toth v Bloshinsky, 39 AD3d 848, 849 [2d Dept 2007 mem]; Philipp Bros. Export Corp. v Peruano S.A., 88 AD2d 529, 529 [1st Dept 1982 mem].)

Jury Waiver Clause

The court holds in abeyance a decision on petitioner's motion to strike Eric Schulman's jury demand pending the court's receipt of the lease, if any, for apartment 16A.

Conclusion

Both proceedings will be heard in Part G on April 30, 2008. The proceedings are adjourned for all purposes.

This opinion is the court's decision and order.

Dated: April 15, 2008

J.H.C.