Davidovits v. DeJesus Realty Corp.

• Decision Date: 23 April 1984
• Citation: 474 N.Y.S.2d 808,100 A.D.2d 924
• Parties: Martin DAVIDOVITS, Appellant, v. DeJESUS REALTY CORP., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 808

474 N.Y.S.2d 808

100 A.D.2d 924

Martin DAVIDOVITS, Appellant, v. DeJESUS REALTY CORP., Respondent.

Supreme Court, Appellate Division Second Department.

April 23, 1984.

Norman S. Langer, Brooklyn (Irving Lederman, Brooklyn, of counsel), for appellant.

Rappaport & Silver, Brooklyn (Sanford Silver, Brooklyn, of counsel), for respondent.

Before THOMPSON, J.P., and WEINSTEIN, BROWN and EIBER, JJ.

MEMORANDUM BY THE COURT.

In an action for specific performance of a real estate contract, plaintiff appeals from an order of the Supreme Court, Kings County, dated October 24, 1983, which, inter alia, granted defendant's motion for summary judgment dismissing the complaint and canceled and discharged plaintiff's notice of pendency.

Order reversed, with costs, defendant's motion denied, notice of pendency reinstated, and case remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.

There is sufficient evidence in the record to indicate the possibility that defendant's president may have signed the contract of sale which plaintiff was seeking to specifically enforce. Although some of the terms of said contract, most notably the clause relating to the amount and payment of the purchase price, are, as Special Term observed, "peculiar", the parties should have been permitted to introduce parol evidence to explain any apparent ambiguities in connection therewith (see Boyajian v. Casey Reinholt), 52 A.D.2d 1014, 383 N.Y.S.2d 714).

The contract of sale, when read as a whole, does not appear to be so one-sided or unreasonable as to be unconscionable under the circumstances existing at the time of the making of the contract (see Blake v. Biscardi, 62 A.D.2d 975, 403 N.Y.S.2d 544). On the other hand, defendant's president's first language is Spanish, and he appears to have had only a ninth grade education. Additionally, he did not have his own attorney present during the negotiation and execution of the contract.

Where there is doubt, as in the case at bar, as to whether a contract is fraught with elements of unconscionability, there must be a hearing where the parties have an opportunity to present evidence with regard to the circumstances of the signing of the contract, and the disputed terms' setting, purpose and effect (State of New York v. Wolowitz, 96 A.D.2d 47, 68-69, 468 N.Y.S.2d 131).

Similarly, there should have been a hearing on the issue of whether plaintiff and his counsel engaged in overreaching, fraud and...