Bianco v. Shareholders Communication Corp.

In an action, inter alia, to recover damages for unjust enrichment, the plaintiffs appeal from an order of the Supreme Court, Queens County (Lonschein, J.), dated February 23, 1995, which denied their motion for summary judgment and granted the defendant’s cross motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, with costs. The plaintiffs failed to establish that the contract at issue "was both procedurally and substantively unconscionable when made” (Gillman v Chase Manhattan Bank, 73 NY2d 1, 10). In addition, this was not one of those exceptional cases in which "a provision of the contract is so outrageous as to warrant holding it unenforceable on the ground of substantive unconscionability alone” (Gillman v Chase Manhattan Bank, supra, at 12). In fact, the defendant submitted evidence in support of its cross motion for summary judgment establishing that the price charged was not excessive. Since this evidence was unrefuted by the plaintiffs, a hearing on the issue of unconscionability was not warranted (cf., Matter of State of New York v Avco Fin. Serv., 50 NY2d 383, 390; State of New York v Wolowitz, 96 AD2d 47, 68-69). Balletta, J. P., Rosenblatt, Pizzuto, Joy and Altman, JJ., concur.