Opinion
2005-97 S C.
Decided November 4, 2005.
Appeal from an order of the District Court of Suffolk County, First District (James Flanagan, J.), entered September 27, 2004. The order denied plaintiff's motion for summary judgment.
Order unanimously modified by granting plaintiff's motion to the extent of granting summary judgment on the issue of liability only; as so modified, affirmed without costs.
PRESENT: RUDOLPH, P.J., ANGIOLILLO and McCABE, JJ.
Plaintiff commenced the instant action to recover damages against the corporate defendant based upon a breach of a lease agreement for an ATM terminal and against the individual defendant upon his personal guaranty. Defendants asserted the affirmative defense of unconscionability arising from the fact that plaintiff and Credit Card Center, the supplier of the ATM terminal, did not disclose that they were separate entities and plaintiff refused to accept the return of the ATM terminal after Credit Card Center failed to make certain payments to the corporate defendant. The court below denied plaintiff's motion for summary judgment. Contrary to the opinion of the court below, there was no evidence presented by defendants which properly established that the lease agreement was unconscionable. Defendants were required to demonstrate both the absence of a meaningful choice as well as the existence of contract terms which were unreasonably favorable to plaintiff ( see Rodriguez v. Nachamie, 57 AD2d 920, 921; Rzepko v. Gia Gem Trade Lab., 115 Misc 2d 755). Defendants made no showing that they lacked a meaningful choice to enter into the agreement and that they did not freely consent to the agreement ( see Preferred Capital, Inc. v. Halkios Rest. Corp., 4 Misc 3d 130[A], 2004 NY Slip Op 50687[U] [App Term, 2d 11th Jud Dists]). Furthermore, the lease agreement unambiguously identifies plaintiff as lessor. There was no showing by defendants that Credit Card Center was plaintiff's agent and plaintiff's president averred in his affidavit in support of the motion that plaintiff had no agency relationship with Credit Card Center ( see Unistar Leasing, Div. of United Computer Capital Corp. v. Lipkin, 12 AD3d 1166). In addition, the doctrine of unconscionability has little application in a commercial setting because it is presumed that businessmen deal at arms length with relative equality of bargaining power ( Master Lease Corp. v. Manhattan Limousine, 177 AD2d 85). The doctrine is primarily a means by which to protect a commercially illiterate consumer who has been beguiled by a grossly unfair bargain by a deceptive vendor or finance company ( Master Lease Corp., 177 AD2d at 90). Thus, there are no triable issues of fact raised warranting a trial on the issue of liability.
As to the issue of damages, plaintiff concedes in the brief on appeal that a hearing should be held to compute the proper measure of damages. In view of the holding in Preferred Capital, Inc. v. Warren ( 8 AD3d 987), a hearing must be held to determine the proper measure of damages.