Estate of Arena v. Abbott & Cobb, Inc.

Defendant correctly contends on appeal that the court erred in submitting to the jury the question of whether the limitation of damages clause was unconscionable because unconscionability is a question of law to be decided by the court (see, Sablosky v Gordon Co., 73 NY2d 133, 138). Although that error was harmless because the court made its own finding *927that the clause was unconscionable, we find that the court erred in so finding, and thus we find that reversal is required. Plaintiff, a commercial farmer, failed to overcome the presumption of conscionability (see, Cayuga Harvester v Allis-Chalmers Corp., 95 AD2d 5, 20-21). (Appeal from judgment of Supreme Court, Oswego County, Donovan, J. — breach of warranty.) Present — Callahan, J. P., Boomer, Pine, Balio and Davis, JJ.