Harner v Pearsall

[*1] Harner v Pearsall 2005 NYSlipOp 50851(U) Decided on May 31, 2005 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 31, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: RUDOLPH, P.J., ANGIOLILLO and COVELLO, JJ.
2004-517 P C

David Harner d/b/a AUTO GLASS OF WESTCHESTER, Appellant,

against

Barbara Pearsall, Respondent, -and- CAROL HARTH, Defendant.

Appeal by plaintiff on the ground of inadequacy from so much of a small claims judgment of the Justice Court, Town of Southeast, Putnam County (J. Borkowski, J.), entered December 17, 2003, as awarded him the sum of $567.45 against defendant Barbara Pearsall.

Judgment insofar as appealed from unanimously affirmed without costs.

Plaintiff instituted this small claims action against defendant Barbara Pearsall to recover the sum of $1,500.98 for windshield replacement services. Said action was subsequently consolidated with plaintiff's action against Carol Harth. The trial court, after hearing the testimony of the parties, found defendant Pearsall's version of the facts to be more credible than plaintiff's version, and further found the circumstances underlying the execution of the contract to be so troublesome as to render the contract unconscionable as a matter of law and therefore unenforceable (see UCC 2-302).

This court's review is limited to determining whether substantial justice was done "according to the rules and principles of substantive law" (UJCA 1807; Ross v Friedman, 269 AD2d 584 [2000]; Blair v Five Points Shopping Plaza, 51 AD2d 167 [1976]). Moreover, the deference normally accorded a trial court's credibility determinations "applies with greater force" in small claims proceedings in light of that limited scope of review (Williams v Roper, 269 AD2d 125, 126 [2000]; Gardner v Pharmacon Intl. Corp., 2001 NY Slip Op 40309[U] [App Term, 1st Dept]). Reversal is warranted only if the court's conclusions were not supported by the record or were so erroneous as to deny substantial justice (see Forte v Bielecki, 118 AD2d 620, [*2]621 [1986] ["the deviation from substantive law must be readily apparent and the court's determination clearly erroneous"]).

Whether a contract or a clause thereof is unconscionable is for the court to decide, taking into account the circumstances surrounding the signing of the contract as well as its "setting, purpose and effect" (State of New York v Wolowitz, 96 AD2d 47, 69 [1983] [procedural unconscionability addresses "high pressure commercial tactics, inequality of bargaining power, deceptive practices and language in the contract, and an imbalance in the understanding and acumen of the parties"]; see also UCC 2-302). In our opinion, the court below, in crediting defendant Pearsall's testimony regarding the execution of the contract and the alleged misrepresentation as to the terms of payment had sufficient evidence before it to find that the contract was unconscionable and therefore unenforceable.
Decision Date: May 31, 2005