On March 10, 2022, Justice Ruchelsman of the Kings County Commercial Division issued a decision in Joglo Realties, Inc. v. Tortorella, 2022 NY Slip Op. 30823(U), holding that questions of fact precluded dismissal of an unconscionability defense to a breach of contract claim, explaining:
The defendants further assert the contract was unconscionable and cannot be enforced. In King v. Fox, 7 NY3d 181, 818 NYS2d 833 [20061 the court held, quoting Black’s Law Dictionary, that at common law an unconscionable agreement was one that no promisor (absent delusion) would make on the one hand and no honest and fair promisee would accept on the other. Thus, an unconscionable contract is one that is so grossly unreasonable as to be unenforceable because of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party. Further, where the facts underlying the claims of an unconscionable contract are essentially undisputed the court may decide the matter as a question of law.
Contracts can either be procedurally or substantively unconscionable and in New York both must be established. Substantive elements of unconscionability appear in the content of the contract per se; procedural elements must be identified by resort to evidence of the contract formation process and meaningfulness of the choice.
The defendants have raised questions of fact whether the contract was negotiated and executed in a manner which could be deemed unconscionable. First, the defendants have presented evidence the plaintiffs, who maintained a superior bargaining position due to the desperate plight of the defendants following the hurricane, exercised uneven and imbalanced pressure tactics to insist upon the terms expressed in the agreement. Further, substantively, an agreement promising lawn maintenance at five locations in perpetuity in addition to paying approximately $ 9,000 for yard cleanup could be viewed as highly unfair. These contentions must be evaluated and decided by a trier of fact. Therefore, based upon this argument there cannot be a summary determination ·the defendants breached the contract.
(Internal quotations and citations omitted).