Jonathan Cass, Ltd. v. Wal-Mart Stores, Inc.

Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered on or about November 14, 1994, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

The IAS Court properly determined that summary judgment was precluded by triable issues of fact, including issues as to the parties’ credibility and intent raised by their conflicting affidavits, with respect to the conformity of the goods sold, the timeliness of the delivery, and the disputed cancellation by the defendant of the parties’ contracts.

A triable issue has been raised as to when the purchase order was given and its applicability, if any, to these transac*32tions. A further triable issue pertains to whether the cancellation provision in the defendant’s purchase order form, which granted defendant the right to unilaterally and arbitrarily cancel its purchase orders, at any stage of the production prior to shipment, regardless of the expense incurred by its vendors, is, in view of the significant disparity and inequality in bargaining power between the parties, unconscionable, and therefore, unenforceable (see, Gillman v Chase Manhattan Bank, 73 NY2d 1, 10-11, 12). Concur—Sullivan, J. P., Rubin, Ross, Nardelli and Mazzarelli, JJ.