ADVANTA BUSINESS SERVICES CORP v. COLON (2004)

On the court's own motion, the decision and order of this court entered January 29, 2004 in the above entitled action is recalled and vacated and the following decision and the order hereon is substituted therefor.

Appeal by plaintiff from an order of the Civil Court, Queens County (B. Siegal, J.), entered May 14, 2002, denying its motion for summary judgment.

Order affirmed without costs.

 Defendants' evidence raised sufficient doubt as to the conscionability of the process by which the finance lease agreement was negotiated to merit a trial, inter alia, of the nature of the representative's negotiating practices with defendant, who is not a native speaker of English.   While we recognize the general rule that finance leases such as the one herein at issue are enforceable (e.g. Preferred Capital v. PBK, 309 A.D.2d 1168, 765 N.Y.S.2d 405 [2003];  Canon Fin. Servs. v. Medico Stationery Serv., 300 A.D.2d 66, 751 N.Y.S.2d 194 [2002];  Preferred Capital, Inc. v. Harvey B., Inc., 2 Misc.3d 131[A], 784 N.Y.S.2d 923, 2004 N.Y. Slip Op. 50115[U], 2004 WL 422846), we are nevertheless persuaded that the instant facts raise a question as to the propriety of the contract negotiation process (Carvel Corp. v. Rait, 117 A.D.2d 485, 490, 503 N.Y.S.2d 406 [1986] [“The question of unconscionability is generally one of fact upon which the parties are entitled to present evidence”];  State of New York v. Wolowitz, 96 A.D.2d 47, 67, 468 N.Y.S.2d 131 [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”] ).   Although UCC 2-A-108(2) limits the procedural unconscionability remedy provided therein to consumer finance leases, thereby purporting to render the remedy of procedural unconscionability inapplicable to a commercial finance lease such as is involved herein (cf. UCC 2-A-108[1] ), the Official Comment to said section makes clear that “[t]he remedies of this section are in addition to remedies otherwise available for the same conduct under other law” (see generally Universal Leasing Servs. v. Flushing Hae Kwan Rest., 169 A.D.2d 829, 565 N.Y.S.2d 199 [1991];  Carvel Corp. v. Rait, 117 A.D.2d 485, 503 N.Y.S.2d 406, supra;  State of New York v. Wolowitz, 96 A.D.2d 47, 468 N.Y.S.2d 131, supra ).

 We are as mindful as our dissenting colleague of the rule that persons insufficiently proficient in the English language must prove reasonable efforts to have a document read and explained (Kassab v. Marco Shoes, 282 A.D.2d 316, 723 N.Y.S.2d 352 [2001];  Shklovskiy v. Khan, 273 A.D.2d 371, 372, 709 N.Y.S.2d 208 [2000] ), or account for why this was not done (Kenol v. Nelson, 181 A.D.2d 863, 866, 581 N.Y.S.2d 415 [1992];  Sofio v. Hughes, 162 A.D.2d 518, 519, 556 N.Y.S.2d 717 [1990] ), if they would avoid the presumption of knowledge of the contents of an executed instrument (British W. Indies Guar. Trust Co. v. Banque Internationale A Luxembourg, 172 A.D.2d 234, 567 N.Y.S.2d 731 [1991] ), and its correlate which binds a contract's signor whether or not the contract was read or understood (Maines Paper & Food Serv. v. Adel, 256 A.D.2d 760, 761, 681 N.Y.S.2d 390 [1998] ).   Nevertheless, viewing defendant's allegations of fact in the light most favorable to her, as we must (e.g. Wenger v. Goodell, 220 A.D.2d 937, 938, 632 N.Y.S.2d 865 [1995] ), we are persuaded that defendant's opposition papers raised triable questions of material fact as to the propriety of the contract negotiation process, particularly in light of defendant's alleged lack of competence in English and the complexities of the contract which included the absence of remedies in the event the consideration therefor failed and the waiver of defenses in the event of a breach (see Universal Leasing Servs. v. Flushing Hae Kwan Rest., 169 A.D.2d 829, 831, 565 N.Y.S.2d 199 [1991];  Advanta Bus. Servs. Corp. v. Five C's Hardware & Paint Store, 256 A.D.2d 369, 370-371, 681 N.Y.S.2d 569 [1998];  Commercial Lease Funding v. Lenny's Little New Yorker, 204 A.D.2d 1080, 613 N.Y.S.2d 512 [1994];  Davidovits v. De Jesus Realty Corp., 100 A.D.2d 924, 925, 474 N.Y.S.2d 808 [1984] ).

The parties entered into a written equipment lease contract for the lease of an automatic teller machine (ATM) to be placed in the beauty salon owned and operated by defendant Colon.   Ms. Colon entered into this contract as a business person who determined that the money to be generated by having the machine in her place of business would be greater than its operating costs.   In other words, her business was going to make a profit from the machine.   A desire to make a profit forms the predicate for most business decisions the world over, even for those business owners who are not native speakers of English.

Unfortunately, the machine did not generate a profit, allegedly because it was inoperable when delivered.   In any event, a number of months later, the defendant beauty salon ceased making payments and the plaintiff leasing company commenced this action against the beauty salon and against Ms. Colon as a guarantor.

In defense of this claim, Ms. Colon raised four affirmative defenses asserting unclean hands, that the machine was never operational, fraud in the inducement, and equitable estoppel.   Plaintiff set forth in its motion for summary judgment the various provisions of the leasing contract which effectively waived those affirmative defenses.   Upon being served with that motion, defendant then claimed, for the first time, that because her English is “very limited”, she could not read the documents in question and did not know what she signed.   She did not, however, set forth any facts to show that she made a reasonable effort to have the contract translated.

The majority, sua sponte, has recalled its prior decision but continues to argue that it is the unique facts of this case that mandate their holding.

There are, however, no unique facts in the case that I was able to ascertain from either the record or from my colleagues' decision.

The majority tacitly acknowledges that the underlying contract is not per se unconscionable as to its terms and conditions inasmuch as the current decision does not state as much.   Instead they address the concept of procedural unconscionability which is a remedy provided by statute for consumer finance leases (UCC 2-A-108[2] ), rather than for commercial finance leases.   The majority then proceeds to assert that despite the clear language of the statute (UCC 2-A-108[2] ) there is an argument to be made that it could be applied to commercial matters.

Having made that assertion, they then make the unsupported finding that under the facts of this case there are triable questions of material fact.   What facts were raised by the defendant to warrant such a finding remain a mystery to me.

Ms. Colon did not explain how she was lured into signing two contracts a number of weeks apart, nor did she address any specific claims of how she was misled other than asserting that English is not her native language.   While the majority found that “defendant's allegations of fact ․ raised triable questions ․ as to the propriety of the contract negotiation process ․”  I, however, am at a loss as to what “allegations of fact” are referenced.   There is nothing in Ms. Colon's opposition papers reflecting a recitation of facts to support that finding.

The lower court was presumably moved by this argument and denied the motion for summary judgment.   Indeed, my colleagues on this Court are similarly moved by this specious argument and therefore vote to affirm.   It is interesting to note that in an unrelated, but strikingly similar case (Preferred Capital v. Harvey B, Inc., 2 Misc.3d 131[A], 784 N.Y.S.2d 923, 2004 N.Y. Slip Op. 50115[U], 2004 WL 422846, decided concurrently with the previous decision herein), the Appellate Term reversed the denial of plaintiff's summary judgment motion and directed that judgment be entered in favor of the plaintiff.

I, however, do not believe that Ms. Colon, who owns a hair salon business which requires licensing by the municipal government, purchased or leased the beauty parlor chairs, commercial hair dryers and other equipment, entered into a commercial lease for the business to operate, hired staff, pays payroll taxes, ordered beauty supplies and mixes complex chemicals, obtained insurance and entered into a myriad of other contracts and agreements that are ancillary to maintaining a business in the City of New York, was unaware of the commercial implications of the contract she signed.

The truth of the matter is that this is a commercial transaction entered into by an experienced store owner seeking to make a profit, and her subsequent claim that she should not be bound by the terms of the contract because she is not well-versed in the English language is unavailing.

In order to substantiate her claim that she was unable to understand the contract because she could not read or write English, Ms. Colon would have to assert that she could not find anyone available to her that is bilingual in Spanish and English in the New York City area.   The absurdity of such claim has evaded no one but the majority, inasmuch as I did not find any assertion by the defendant that she had employed reasonable efforts to obtain a translator or anyone to assist her but was unable to do so.

The defendant relies in large part on the precept pronounced by the Court of Appeals in Pimpinello v. Swift & Co., 253 N.Y. 159, 163, 170 N.E. 530 [1930] that “[i]f the signor is ․ ignorant of the alien language of the writing, and the contents thereof are misread or misrepresented to him by the other party ․ unless the signor be negligent, the writing is void.”   Not only is said precept inapplicable to the facts herein, the defendant herself was negligent in failing to have the document translated or read.   Indeed, there is no allegation, much less proof, that the plaintiff or the vendor misrepresented the contents of the contract.

As aptly stated by the Appellate Division, Second Department in the matter of Sofio v. Hughes, 162 A.D.2d 518, 520, 556 N.Y.S.2d 717 [1990]:

“Persons who are blind or illiterate are not automatically excused from complying with the terms of the contracts which they sign simply because this disability might have prevented them from reading the contracts.   The cases consistently hold that a person with such a disability must make a reasonable effort to have the document read to him. [emphasis added]”

The mere fact that English is not the defendant's native language should neither stand as a disability nor as a defense.   Prior to signing the contract, Ms. Colon had several weeks' time to have the contract read to her either in English, which she apparently understands to some degree, or translated into Spanish by a friend, or acquaintance or a translating service.   It is inconceivable to me that Ms. Colon was unable to find anyone available to her in Queens County who is bilingual in Spanish and English.   While the majority opinion acknowledges the rule enunciated in Sofio v. Hughes, 162 A.D.2d 518, 556 N.Y.S.2d 717, supra;  see generally Kassab v. Marco Shoes, 282 A.D.2d 316, 723 N.Y.S.2d 352 [2001];  Shklovskiy v. Khan, 273 A.D.2d 371, 372, 709 N.Y.S.2d 208 [2000];  Kenol v. Nelson, 181 A.D.2d 863, 866, 581 N.Y.S.2d 415 [1992], they fail to apply same.   Moreover, the plaintiff's representative was never involved in the negotiating process.   Ms. Colon only dealt with the representative of the vendor.   Thus it cannot even be argued that plaintiff in any way “misread or misrepresented” the contents of the contract to her (cf. Pimpinello v. Swift, 253 N.Y. at 163, 170 N.E. 530).

Accordingly, I vote to reverse the order of the lower court and to grant the motion for summary judgment in favor of the plaintiff.

PESCE, P.J., and RIOS, J., concur. GOLIA, J., dissents in a separate memorandum.