On June 26, 2026, the Fourth Department issued a decision in NewCo Capital Group LLC v. SPE Trading, Inc., 2026 NY Slip Op. 04057, holding that an unconscionability defense failed for lack of procedural unconscionability, explaining:
We also reject defendants’ contention that the agreement is unconscionable. Whether a contract or any clause of the contract is unconscionable is a matter of law for the court to decide against the background of the contract’s commercial setting, purpose, and effect. A determination of unconscionability generally requires a showing that the contract was both procedurally and substantively unconscionable when made—i.e., some showing of an absence of meaningful choice on the part of one of the parties together with contract terms that are unreasonably favorable to the other party. The procedural element of unconscionability requires an examination of the contract formation process and the alleged lack of meaningful choice. The focus is on such matters as the size and commercial setting of the transaction whether deceptive or high-pressured tactics were employed, the use of fine print in the contract, the experience and education of the party claiming unconscionability, and whether there was disparity in bargaining power.
Here, defendants failed to raise a triable issue of fact whether the agreement is unconscionable. Although they point to provisions in the agreement that they allege are unconscionable, defendants submitted no evidence in opposition to the motion and made no allegation in their answer that they lacked a meaningful choice in entering the agreement.
(Internal citations omitted).