Hyperlawhypertext legal database Commercial Lease Funding Corp. v. Lenny's Little New Yorker, Inc. 204 A.D.2d 1080

← Cases

Commercial Lease Funding Corp. v. Lenny's Little New Yorker, Inc.

204 A.D.2d 1080 Court N.Y. App. Div. Decision date 1994-05-27 English

Contents

Majority

p. 1080
Commercial Lease Funding Corp., Respondent, v Lenny’s Little New Yorker, Inc., et al., Appellants.
[613 NYS2d 512]

—Judgment unanimously reversed on the law without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: We agree with Supreme Court’s conclusions that defendants were in default in their payments pursuant to a commercial lease, that plaintiff’s late acceptance of lease payments in the past did not operate as a waiver of remedies available to plaintiff under the lease (see, Jefpaul Garage Corp. v Presbyterian Hosp., 61 NY2d 442 , 446), and that the disclaimer of warranty provision is conspicuous (see, UCC 2-316; cf., Nassau Suffolk White Trucks v Twin County Tr. Mix Corp., 62 AD2d 982 ). In our view, however, defendants presented evidence sufficient to entitle them to a hearing on the issue of unconscionability of the disclaimer of warranty provision in the commercial lease

p. 1081
(see, Universal Leasing Servs. v Flushing Hae Kwan Rest., 169 AD2d 829 ; Tandy Computer Leasing v A.T.C. Control Serv., 139 Misc 2d 128 ; cf., Master Lease Corp. v Manhattan Limousine, 177 AD2d 85 , 90, lv dismissed 80 NY2d 893 ). Consequently, the judgment is reversed and the matter remitted to Supreme Court to afford the parties "a reasonable opportunity to present evidence as to [the contract’s] commercial setting, purpose and effect to aid the court in making the determination” concerning unconscionability (UCC 2-302 [2]). (Appeal from Judgment of Supreme Court, Nassau County, Segal, J.— Breach of Commercial Lease.) Present—Green, J. P., Balio, Fallon, Doerr and Boehm, JJ.

Cases cited