On March 21, 2022, Justice Gomez of the Bronx County Commercial Division issued a decision in Norman Realty & Constr. Corp. v. 151 E. 170th Lender LLC, 2022 NY Slip Op, 50212(U), holding that there can be no affirmative claim for unconscionabilty, explaining:
[O]n this record, defendant establishes prima facie entitlement to summary judgment as to the causes of action for unconscionabilty. Significantly, it is well settled that a party cannot bring an affirmative claim sounding in unconscionability in the formation of an agreement. Thus, here, the causes of action for unconscionability affirmatively pleaded in the complaint fail for that reason alone. However, the cause of action also fails because the record establishes that the loan documents in question evince a transaction between sophisticated business people dealing at arm’s length, and each were represented by counsel. As noted above, a claim of unconscionability only lies to protect the commercially illiterate and does not lie in a commercial setting, where the parties dealing at arm’s length have equality of bargaining power. This is particularly true where, as here, as born by the record, plaintiff was at all times represented by counsel, such that there existed no circumstances establishing that consent to the execution of the contract was not freely and knowingly given. Indeed, here, within paragraph 46(c) of the restated note, plaintiff expressly states that it acknowledged it engages in the business of real estate financings and other real estate transactions and investments which may be viewed as adverse to or competitive with the business of the Mortgagor or its affiliates, and further acknowledged that it is represented by competent counsel and has consulted counsel before executing the Loan Documents.
(Internal quotations and citations omitted).