Estate of Arena v. Abbott & Cobb, Inc. 158 A.D.2d 926

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.