Opinion
May 27, 1994
Appeal from the Supreme Court, Nassau County, Segal, J.
Present — Green, J.P., Balio, Fallon, Doerr and Boehm, JJ.
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 N.Y.2d 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 A.D.2d 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 (see, Universal Leasing Servs. v. Flushing Hae Kwan Rest., 169 A.D.2d 829; Tandy Computer Leasing v. A.T.C. Control Serv., 139 Misc.2d 128; cf., Master Lease Corp. v. Manhattan Limousine, 177 A.D.2d 85, 90, lv dismissed 80 N.Y.2d 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).