Commercial Lease Funding Corp. v. Lenny's Little New Yorker, Inc.

—Judgment unanimously reversed on the law without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: We agree with Supreme Court’s conclusions that defendants were in default in their payments pursuant to a commercial lease, that plaintiff’s late acceptance of lease payments in the past did not operate as a waiver of remedies available to plaintiff under the lease (see, Jefpaul Garage Corp. v Presbyterian Hosp., 61 NY2d 442, 446), and that the disclaimer of warranty provision is conspicuous (see, UCC 2-316; cf., Nassau Suffolk White Trucks v Twin County Tr. Mix Corp., 62 AD2d 982). In our view, however, defendants presented evidence sufficient to entitle them to a hearing on the issue of unconscionability of the disclaimer of warranty provision in the commercial lease (see, Universal Leasing Servs. v Flushing Hae Kwan Rest., 169 AD2d 829; Tandy Computer Leasing v A.T.C. Control Serv., 139 Misc 2d 128; cf., Master Lease Corp. v Manhattan Limousine, 177 AD2d 85, 90, lv dismissed 80 NY2d 893). Consequently, the judgment is reversed and the matter remitted to Supreme Court to afford the parties "a reasonable opportunity to present evidence as to [the contract’s] commercial setting, purpose and effect to aid the court in making the determination” concerning unconscionability (UCC 2-302 [2]). (Appeal from Judgment of Supreme Court, Nassau County, Segal, J.— Breach of Commercial Lease.) Present—Green, J. P., Balio, Fallon, Doerr and Boehm, JJ.