“II OVERVIEW OF CPLR ARTICLE 16 “CPLR article 16 was enacted in 1986 as part of a legislative package commonly known as the ‘Toxic Torts’ bill. The law significantly, albeit only partially, amends the rule of joint and several liability applied in New York for centuries. Under the joint and several rule, an injured claimant can obtain full compensation from any culpable tortfeasor named in the lawsuit with a sufficient ‘deep *1001pocket’. The deep pocket defendant, even if only slightly culpable, remains fully responsible for the shares attributable to all other joint tortfeasors, named or unnamed in the lawsuit. At common law, the defendant did not even have recourse against his joint tortfeasors, an inequity that has been addressed to some degree under the doctrine of contribution (see, Sommer v Federal Signal Corp., 79 NY2d 540, 555-557). The rules of contribution, codified under CPLR article 14, distribute the loss more equitably between the culpable parties, according to their relative degree of fault (CPLR 1402). However, the claimant’s right to obtain full payment of a judgment against the solvent deep pocket defendant essentially remains unaffected under CPLR article 14 (see, CPLR 1404 [a]). In practice, even under CPLR article 14, defendants with marginal responsibility, such as a municipality, still must pay large judgments with no hope of obtaining reimbursement from more culpable, but less solvent, defendants. “Public calls for reform of the joint and several liability rule, and concerns about other issues affecting the liability insurance industry, were addressed by an Advisory Commission formed by the Governor. CPLR article 16 emerged as a modified version of the Advisory Commission’s recommendation to make defendants severally liable for noneconomic loss (see, Governor’s Mem approving L 1986, ch 682, 1986 NY Legis Ann, at 288-289). “Under CPLR 1601 (1), a defendant found 50% or less culpable is entitled to several liability status, and cannot be compelled to pay more than its equitable share of any judgment awarded to the claimant for noneconomic loss. Critically, the law now effectively puts the plaintiff in peril and makes it incumbent upon the plaintiff to join all culpable parties subject to the court’s personal jurisdiction. This enhanced responsibility arises because the relative culpability of nonparties must now be considered by the trier of the facts in apportioning liability under CPLR 1601, unless the plaintiff is able to prove that he or she was unable, despite the exercise of due diligence, to obtain personal jurisdiction over the nonparty (see, Zakshevsky v City of New York, 149 Misc 2d 52). *1002“The consideration of a nonparty’s culpability and the prospect that the most culpable tortfeasor is insolvent, could prevent a claimant from obtaining full compensation. This highlights the need for requiring the defendants to provide adequate notice of their claims pursuant to CPLR article 16. The due diligence issue itself may be complex, and should, if possible, be decided by the court in advance of trial (see, PJI 2:275 [1993 Supp]). “CPLR 1603, entitled ‘Burdens of proof, is also relevant to the issues here. It requires any person wishing to avoid the application of CPLR article 16, usually the plaintiff, to establish one or more of the exemptions enumerated in CPLR 1602 by a preponderance of the evidence. More importantly, a party seeking <mask> pursuant to CPLR article 16 has the burden of proving, also by a preponderance of the evidence, ‘its equitable share of the total liability’. In light of this burden of proof, the Appellate Division, Fourth Department, in the only appellate decision to address the questions at issue here, held that a party asserting CPLR article 16 as an affirmative defense must provide a responsive bill of particulars when served with a proper demand (see, Ryan v Beavers, 170 AD2d 1045, 1046). For the reasons that follow, I agree with the holding of the Fourth Department in Ryan. “HI CPLR ARTICLE 16 SHOULD BE PLEADED AS AN AFFIRMATIVE DEFENSE “Assertion of apportionment pursuant to CPLR article 16 is a defense similar to the comparative negligence defense that must be asserted under CPLR article 14-A. Under CPLR 1412, ‘culpable conduct claimed in diminution of damages’ attributable to the claimant must be pleaded as an affirmative defense and proved by the party asserting the defense. The pleading burden specified by CPLR 1412 is expressly incorporated into the noninclusive list of affirmative defenses that must be pleaded under CPLR 3018 (b). CPLR article 16 likewise imposes the burden of proof on the party seeking several liability status; as noted by one well-known commentator, it amounts to a defense that should be pleaded as such in the answer (see, Siegel, New York Practice, § 168 [D] [2d ed]). *1003“The enumerated list of affirmative defenses that must be pleaded under CPLR 3018 does not specify CPLR article 16 apportionment, but the list is not exhaustive. Imposing such a burden is consistent with the direction of CPLR 3018 (b) requiring a party to ‘plead all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading’. “New matter, even partial defenses such as evidence offered in mitigation of damages, should be pleaded in order to eliminate surprise and to permit the plaintiff to know what contentions will be inteijected at trial (see, 3 Weinstein-Korn-Miller, NY Civ Prac, 1111 3018.13, 3018.17). The assertion of a defense pursuant to CPLR article 16, particularly in a case such as this, where the respondents have sought to reserve the right to limit liability, in whole or in part, by proving the culpability of an unnamed joint tortfeasor, interjects new matter into the proceedings. Additionally, one or more of the named respondents may attempt to minimize their relative culpability by offering evidence based on a different theory or theories of liability than those presented by the plaintiff. The plaintiff should be alerted to such new matter by appropriate notice provided in the responsive pleadings, and if necessary, amplification by way of a bill of particulars.” It is clear from Justice Ritter’s excellent discussion of CPLR article 16 that the purpose it was enacted for was to remedy the problem of marginally liable defendants being fully liable to a plaintiff for all damages caused by the actions of codefendants or nonparties. CPLR article 16, therefore, addresses the apportioning of liability among codefendant and nonparties.


*145In Wouk v Harewood the relevant standard form lease clause provides: "it is expressly agreed by and between the parties hereto that in the event of a dispute * * * whether concerning the lease or otherwise, which * * * shall result in action at law * * * or a proceeding by one party against the other and whether the form of the claim advanced is either in the nature of a complaint or a counterclaim in the action or proceeding * * * Tenant agrees to and hereby does waive any rights he may have to a trial by jury.” Other clauses provide for a unilateral tenant waiver of rights to "notice”, "proceedings,” of the landlord’s right to re-enter and to possession; and barring interposing any setoff and counterclaims in nonpayment cases. The unilateral nature of the tenant’s waiver of rights, clearly proscribed under law, marks the <mask> of the provisions on their face. In fact, according to the terms of this lease, the landlord has granted to itself a "self-help” right of eviction without any process of law whatsoever within the same provision as the tenant’s jury trial waiver. By commencing this proceeding, it could be argued, the landlord has waived the right to assert the entire clause including tenant’s jury trial waiver.


The plaintiff induced the defendant to sign the installment note by promising that he would be accepted into BNI’s Eastchester Chapter. That promise was false and the transaction which induced defendant to sign the installment note was unconscionable (see, e.g., Hertz Corp. v Attorney-General of State of N. Y., 136 Misc 2d 420, 424 [1987] [unconscionable bargain defined: “The concept has been employed primarily in the area of consumer protection, in an attempt to deal with the ‘ “never-ending stream of consumer gypsters and fraudulent operators”’”]; People v Two Wheel Corp., 71 NY2d 693 [1988] [doctrine of unconscionability]; Kugler v Romain, 58 NJ 522, 544, 279 A2d 640, 652 [1971] [“<mask> must be equated with the concepts of deception, fraud, false pretense, misrepresentation * * * and the like”]).


An unconscionable arbitration provision will not be enforced. Manfredi v. Blue Cross & Blue Shield of Kansas City , 340 S.W.3d 126, 132 (Mo. App. W.D. 2011). Procedural <mask> deals with the formalities of making a contract, while substantive unconscionability deals with the terms of the contract itself. State ex rel. Hewitt v. Kerr , 461 S.W.3d 798, 807 n.7 (Mo. banc 2015). Procedural unconscionability encompasses high pressure sales tactics, unreadable fine print, and misrepresentations among other unfair issues in the contract formation process. Id. Substantive unconscionability means an undue harshness in the contract terms. Id.


A claim of procedural <mask> is judged by whether the party seeking to enforce the contract used high pressure tactics or deceptive language, and whether there was inequality of bargaining power between the parties. (Gillman v Chase Manhattan Bank, 73 NY2d 1 [1988].) Whether or not the plaintiff used high pressure tactics to force the defendant into this agreement is not at issue. Neither party found it necessary to describe the setting in which the agreement was consummated. Defendant’s affidavit also does not support a claim that the contract used deceptive language or that there was inequality of bargaining power. Defendant merely states that he did not understand certain terms of the contract. He does not explain why these terms are deceptive, and he offers the court no explanation as to how the true meaning of these terms contributed to his default. Nor does the defendant argue that there was inequality of bargaining power between the parties. Unsolicited offers of credit are numerous in our society. It is unlikely that the defendant had no other choice but to enter into a credit agreement with the plaintiff.


As support for her claim that Resolve gives Genworth an unfair preview of her evidence, Baxter relies upon Nyulassy v. Lockheed Martin Corp. (2004) 120 Cal.App.4th 1267, 16 Cal.Rptr.3d 296, and Pokorny v. Quixtar, Inc. (9th Cir. 2010) 601 F.3d 987. In those cases, the arbitration agreement did not provide for a mediation conducted by a neutral third party mediator as a condition precedent to arbitration but, instead, required mediation to be conducted through the employer's internal processes. ( Nyulassy v. Lockheed Martin Corp. , at p. 1282, 16 Cal.Rptr.3d 296 ; Pokorny v. Quixtar, Inc. , at p. 999.) In addition, in both cases the obligation to pursue informal dispute procedures was not mutual but applied to the employee only. (Ibid. ) Here, by contrast, the requirement to pursue informal dispute resolution procedures is mutual and applies to Genworth as well as its employees. Further, the Resolve guidelines expressly provide for a neutral third party mediator who is mutually selected by both parties. Consequently, the cases relied upon by Baxter do not support her <mask> claim.


*7With respect to this court’s subject matter jurisdiction, the law is clear that if a matter relates to the affairs of a decedent or the administration of an estate, the Surrogate’s Court has jurisdiction (NY Const, art VI, § 12 [d]; Matter of Piccione, 57 NY2d 278). Furthermore, the proceedings enumerated in the SCPA are not exclusive, and a proceeding not specifically provided for in the SCPA can be commenced where the court has subject matter jurisdiction (SCPA 202). The Surrogate’s Court can exercise the same powers the Supreme Court has with respect to matters within its subject matter jurisdiction (SCPA 209 [10]). It is also well settled that the question of interpretation and enforcement of a marital agreement as it affects a decedent’s estate is clearly within the subject matter of the Surrogate’s Court (Matter of Garofalo, 141 AD2d 899). In the instant matter, the surviving spouse seeks merely a legal determination that the marital agreements are unenforceable because of the abatement of the divorce action. This is not a request to vacate a prior order of the Supreme Court (CPLR 5015 [a]). Nor is this an action to vacate the separation agreements or stipulations on the grounds of fraud, duress, overreaching, or <mask>. No such factual allegations are made in this proceeding. Neither can this proceeding be classified as an impermissible appeal of the orders of the Supreme Court. Can there be any doubt that if the executor had commenced a discovery proceeding against the spouse for the enforcement of these agreements and return of these assets if she had received them as a joint tenant or tenant by the entirety, that this court would have subject matter jurisdiction over such a matter as relating to the affairs of the decedent? In a case cited by the estate, in its surreply affirmation, the First Department upheld the enforcement of a separation agreement and directed a surviving ex-wife to turn over pension plan benefits to the estate in a discovery proceeding brought under SCPA 2103 in the Surrogate’s Court (Matter of Hayman--Chaffey, 267 AD2d 142, lv denied 94 NY2d 932). This proceeding by the spouse asking the court to declare the agreements void and ineffective as abated and to direct that all the funds held in United States Treasury bills be released to her as a joint tenant with right of survivorship is simply in the nature of a reverse discovery proceeding authorized by SCPA 2105 (Matter of Mittleman, 35 Misc 2d 848). Consequently, this court has subject matter jurisdiction of these issues that clearly relate to the decedent’s affairs (SCPA 202).


Third, the arbitration clause referred to the American Arbitration Association, but did not clearly state what rules would govern arbitration, nor was respondent provided with a copy of the governing rules. (See Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 245, 199 Cal.Rptr.3d 332 [level of oppression is increased when "the employer not only fails to provide a copy of the governing rules, but also fails to clearly identify which rules will govern so the employee could locate and review them"]; compare Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1246, 200 Cal.Rptr.3d 7, 367 P.3d 6 [no increased showing of procedural <mask> where arbitration agreement set forth rules that would govern arbitration, but copy of rules was not provided].)


The wife’s thirteenth counterclaim, seeking declaratory judgment for recision of the entire separation agreement due to <mask>, is equally lacking in merit. A separation agreement “which is fair on its face will be enforced according to its terms unless there is proof of . . . unconscionability.” (Doukas v Doukas, 47 AD3d 753, 753-754 [2d Dept 2008].) An unconscionable agreement is one which


The dominant belief of the laissez-faire system of late 18th and 19th century America was that parties were free to contract as they chose without interference by the courts, regardless of resulting harsh or oppressive terms. This almost sacred adherence to the concept of freedom of contract found its justification in the basic principle of contract law that one is bound by the writing one signs. Only recently has it been recognized that there can be no genuine assent where bargaining power is unequal and where often the only choice presented is "take-it-or-leave-it.” Today, the use of the form contract has become a necessary and economically advantageous component of the mass transaction. The code does not alter axiomatic contract principles but rather strengthens and transforms the outmoded concept of unrestrained freedom of contract to that of freedom of intended bargain. The doctrine *125of <mask> deals with the pathology of nonbargaining. "There is no freedom of contract in the equal treatment of unequals.” (Murray, p 28.) Underlying all contracts in such a system are the code’s basic obligations of good faith and fair dealing. (Uniform Commercial Code, §§ 1-203, 2-103.)


While no standards of <mask> are provided in section 235-c of the Real Property Law, it is basically a statutory codification of the common-law doctrine of unconscionability, which had previously been applied to contracts of sale by section 2-302 of the Uniform Commercial Code. (See Governor’s Memorandum on approving L 1976, ch 828, NY Legis Ann, 1976, p 406; see, also, Tai On Luck Corp. v Cirota, 35 AD2d 380, app dsmd 29 NY2d 747; Seabrook v Commuter Housing Co., 72 Misc 2d 6, affd 79 Misc 2d 168.)


Here, plaintiff did not argue <mask> or otherwise challenge the enforceability *164of the arbitration provisions. She acknowledged the court properly granted defendants' motion to compel arbitration and had issued a corresponding nonappealable order. And, her summary judgment opposition papers clearly stated: "[Plaintiff] is not trying to claim that the arbitration clause was unconscionable when signed nor is she seeking to deprive [defendants] of their right to arbitration. Plaintiff is fine with either forum so long as she can proceed in one of them." The court, therefore, erred in focusing on unconscionability as the primary issue to be decided.


On this basis alone rescission of the contract between plaintiffs and defendant is justified. However, rescission may also be granted upon a showing of <mask> (see, James v SCS Bus. & Tech. Inst., NYLJ, Jan. 15, 1993, at 28, col 4, supra; Albert Merrill School v Godoy, 78 Misc 2d 647, supra; Educational Beneficial v Reynolds, 67 Misc 2d 739, supra) and/or misrepresentations which are deceptive or fraudulent in nature (see, James v SCS Bus. & Tech. Inst., supra; Albert Merrill School v Godoy, supra; Joyner v Albert Merrill School, 97 Misc 2d 568, supra; Paladino v Adelphi Univ., 89 AD2d 85, supra).


"There are two prerequisites for a delegation clause to be effective. First, the language of the clause must be clear and unmistakable. [Citation.] Second, the delegation must not be revocable under state contract defenses such as fraud, duress, or <mask>." ( Tiri, supra, 226 Cal.App.4th at p. 242, 171 Cal.Rptr.3d 621 ; see also Rent-A-Center, supra, 561 U.S. at pp. 68, 69, fn. 1, 130 S.Ct. 2772.) The "clear and unmistakable" test reflects a "heightened standard of proof" that reverses the typical presumption in favor of the arbitration of disputes. ( Ajamian v. CantorCO2e, L.P. (2012) 203 Cal.App.4th 771, 787, 137 Cal.Rptr.3d 773 ( Ajamian ).)


Winston cites no applicable authority holding that Armendariz has been invalidated on any ground other than that stated in Concepcion . Winston recently filed a supplemental brief regarding the United States Supreme Court decision in Epic Systems Corp. v. Lewis (2018) --- U.S. ----, 138 S.Ct. 1612, 200 L.Ed.2d 889, but that case concerned whether class and collective action waivers in arbitration agreements violated the National Labor Relations Act, and it did not mention Armendariz . Indeed, Epic Systems explicitly reaffirmed, like Concepcion before it, that the FAA does not preempt the invalidation of arbitration agreements by " ' "generally applicable contract defenses, such as fraud, duress, or <mask>." ' " ( Epic Systems, at p. 1622 ; Concepcion , supra , 563 U.S. at p. 339, 131 S.Ct. 1740 ; see Samaniego v. Empire Today, LLC (2012) 205 Cal.App.4th 1138, 1150, 140 Cal.Rptr.3d 492 [concluding unconscionability analysis remains applicable to arbitration clauses in employment contracts post- Concepcion ].) Because Armendariz remains controlling law, we are bound by it. ( Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)


Procedural <mask> arises in the making of the agreement, focusing on "the oppression that arises from unequal bargaining power and the surprise to the weaker party that results from hidden terms or the lack of informed choice." ( Ajamian , supra , 203 Cal.App.4th at p. 795, 137 Cal.Rptr.3d 773.) There is no question here that the delegation clause is part of a contract of adhesion, as it was drafted by Vivint Solar and presented to the Aanderuds on a take-it-or-leave-it basis. ( Armendariz, supra, 24 Cal.4th at p. 113, 99 Cal.Rptr.2d 745, 6 P.3d 669.) Moreover, Margaret was an unsophisticated party who was given little time to review the SPPA which, coupled with the "arcane nature" of the delegation clause, added to its oppression and surprise. ( Tiri , supra , 226 Cal.App.4th at p. 246, 171 Cal.Rptr.3d 621.)


In the instant action the court finds that plaintiffs have asserted the following cognizable causes of action against the defendant: (1) breach of contract; (2) rescission based upon (a) want of consideration, (b) failure of consideration, (c) <mask>, and (d) misrepresentations; (3) breach of fiduciary duty; (4) educational malpractice; and (5) violation of General *619Business Law § 349 (unfair and deceptive business practices). The defendant has asserted the defense of its Cancellation Policy and asserted a breach of contract against the plaintiffs.


*934However, the courts have recognized exceptions to the general rule. For instance, legal fees have been granted as necessaries where the defendant takes affirmative action to change the matrimonial judgment (Gyory v Schaffer, 80 AD2d 871; Friou v Gentes, supra; Fox v Fox, 263 NY 68), or fails to obey the judgment (Goldberg v Keller, 236 App Div 541), or otherwise disregards the judgment (Cohen v Kosch, supra), or where a separation agreement itself is challenged due to fraud or <mask> (Goldman v Goldman, 132 Misc 2d 870, affd 124 AD2d 1079), or where the plaintiff takes affirmative action against the defendant to obtain relief not barred by a foreign judgment (Gutterman v Langerman, 2 AD2d 63, supra).


While the parties bleed their discussions of substantive and procedural <mask> together, it is helpful to distinguish the two types of unconscionability. Texas recognizes both procedural and substantively unconscionability as defense against contract enforcement. Delfingen US-Tex., L.P. v. Valenzuela , 407 S.W.3d 791, 797 (Tex.App.-El Paso 2013, no pet.). Substantive unconscionability refers to the inherent unfairness of a particular contract or provision; procedural unconscionability deals with the circumstances surrounding a contract's adoption. Id. " 'Unconscionability' has no precise legal definition because it is not a concept but a determination to be made in light of a variety of factors." Id. at 798. In assessing whether a contract is unconscionable under the totality of the circumstances, we consider: (1) the "entire atmosphere" in which the agreement was made; (2) the alternatives, if any, available to the parties at the time the contract was made; (3) the "non-bargaining ability" of one party; (4) whether the contract was illegal or against public policy; and (5) whether the contract is oppressive or unreasonable. Id. "The grounds for substantive abuse must be sufficiently shocking or gross to compel the court to intercede, and the same is true for procedural abuse-the circumstances surrounding the negotiations must be shocking." Id.


The application of the doctrine of <mask> has not been limited to sales contracts. “At first blush one might assume that the Uniform Commercial Code does not reach franchise or distributorship agreements * * * However, the courts have not been reluctant to enlarge the type of commercial transactions clearly encompassed within the spirit and intendment of the statute” (Division of Triple T Serv. v Mobil Oil Corp., 60 Misc 2d 720, 727). Thus, the broad mantle of the Uniform Commercial Code has been to cover many and varied business transactions. See Industrialease & Automated Scientific Equip, v R.M.E. Enterprises (58 AD2d 482); Nu Dimensions Figure Salons v Becerra (73 Misc 2d 140); Albert Merrill School v Godoy (78 Misc 2d 647); Miner v Walden (101 Misc 2d 814), and Joyner v Albert Merrill School (97 Misc 2d 568, 574) wherein the court stated that “The doctrine of caveat emptor has given way, at least in part, to the doctrine of caveat venditor in recognition of the fact that many consumers, by reason of their lack of education, lack of experience, and limited bargaining power, are not in equal bargaining positions with the vendors with whom they deal”.


Defendant has previously moved pursuant to order to show cause for an order (1) staying the entry of the judgment of divorce in the above-captioned matter, (2) permitting defendant to withdraw her affidavit of consent consenting to the divorce complaint of plaintiff, (3) permitting defendant to interpose an answer and counterclaim in the above-captioned action, and (4) awarding child support to defendant in the sum of $500 per week. The balance of those motions was held in abeyance until the rendering of a decision on the vacatur of the separation agreement. That issue was referred on consent to the Honorable Louise Gans, Judicial Hearing Officer (JHO), which resulted in a memorandum decision of JHO Gans, dated January 14, 2006, wherein it was determined that the separation agreement executed November 24, 2003 by plaintiff and November 27, 2003 by defendant is invalid and should be set aside as “permeated by overreaching, unfairness or <mask>.”*


Moreover, this case confirms my view, as set forth in Sonic II , that the unique <mask> analysis a majority of this court applies to compulsory arbitration of Berman claims is incompatible with, and therefore preempted by, the FAA for another reason: it " ' "stand[s] as an obstacle to the accomplishment and execution of [Congress's] full purposes and objectives " ' in passing the FAA." ( Sonic II , supra , 57 Cal.4th at p. 1187, 163 Cal.Rptr.3d 269, 311 P.3d 184 (conc. & dis. opn. of Chin, J.).) In Italian Colors , supra , 570 U.S. at pages 237, 238 [133 S.Ct. 2304, 2311-2312], the high court rejected an approach that would " 'require courts to proceed case by case to tally the costs and burdens to particular plaintiffs in light of their means' " and " 'the size of their claims.' " "Such a preliminary litigating hurdle," the court explained, "would undoubtedly destroy the prospect of speedy resolution that arbitration in general and bilateral arbitration in particular was meant to secure. The FAA does not *172sanction such a judicially created superstructure." ( Id. at p. 239 [133 S.Ct. at p. 2312 ].) As I explained in Sonic II , the *766unconscionability inquiry the Sonic II majority set forth - by requiring a "minitrial" in superior court "on the comparative costs and benefits of arbitration and the Berman procedure for a particular employee" and possible "appellate review of the trial court's decision" - creates "the very type of 'superstructure' " that, according to the high court, "the FAA prohibits." ( Sonic II , at p. 1188, 163 Cal.Rptr.3d 269, 311 P.3d 184 (conc. & dis. opn. of Chin, J.).)


Where, as here, the judgment was entered on consent of the parties based upon their own voluntary agreement, with no indication of overreaching, unfairness or <mask> (cf. Christian v Christian, 42 NY2d 63, 71-72), and the remedy sought for its violation would not produce a windfall but rather would put the parties roughly in the same position they would be in had the judgment been *88obeyed, it should be immune from collateral attack on a motion for civil contempt.


At trial only the plaintiff testified as to the representations made by Mr. Kieffer during his 21/i-hour sales presentation. Predicated upon the above findings of fact, this court finds that plaintiff has asserted the following cognizable causes of action against the defendant: (1) rescission based upon a violation of Personal Property Law § 428 (Door-To-Door Sales Protection Act); (2) rescission based upon (a) want of consideration, (b) failure of consideration, (c) <mask>, and (d) misrepresentations; and (3) violation of General Business Law § 349 (deceptive and unfair business practices).


. The court notes the recent decision, West 14th St. Commercial Corp. v 5 W. 14th Owners (— F Supp — [SDNY, Jan. 13, 1986, 85 Civ 5138 (WK)]). In that case, the court found the provision permitting termination inapplicable since the unit owners had an extensive history of negotiations involving the leasing rights retained by the developer. While, therefore, distinguishable from the case at bar, this court considers the precise purpose of this provision of the Condominium Act to eliminate the necessity for the unit owners to demonstrate the <mask> of the retained leasing right.


The defendant now seeks an order in the nature of partial summary judgment “declaring the Equitable Distribution Agreement dated February 21, 1992 void, ab initio, as a matter of law for: (a) lack of consideration and/or (b) <mask>.” There has been no discovery in this case. Defendant asks this court to decide as a matter of law that the postnuptial agreement should be rescinded simply by reading the agreement itself. In fact, defendant’s motion is supported only by her attorney’s affirmation which is of no evidentiary value (Zucker-man v City of New York, 49 NY2d 557 [1980]). Defendant urges this court that the issue can be decided solely by examining the contract itself without having to consider the circumstances which existed at the time the agreement was entered into.


Brinkley argues that the trial court erred in admitting the declarations of Lisa Pruitt, a senior manager of client and support services at Monterey, and Chris Hughes, Monterey's president, proffered by Monterey in response to Brinkley's declarations regarding procedural <mask>. Brinkley also contends that the trial court erred in admitting the RIC, itself, in evidence, arguing that Monterey failed to properly authenticate it.7 Finally, she contends that even if the trial court properly admitted this evidence, the court erred in failing to hold an evidentiary hearing on these matters.


Nevertheless — Goodie argues — recent decisions in Avenue Assoc. v Buxbaum, (83 Misc 2d 719) and Shapiro v Marstone Distrs. (40 AD2d 878) have stricken such jury lease waivers. However, neither decision is controlling in these circum*480stances. The court, itself, in the Avenue Assoc, case, expressly distinguishes its determination from commercial cases. Additionally, that decision is based upon findings in a residential lease of <mask> and compulsion not present here. Shapiro is also distinguishable from the case here, primarily, because it does not involve the carry-over of a jury lease into a month-to-month tenancy. Furthermore, in Shapiro, the Appellate Division allowed a guarantor’s jury demand to stand despite a jury waiver in a lease because the guarantor (p 878) "was neither the lessor nor lessee”. Here, Goodie was the lessee in the agreement which contained the jury lease waiver.


An arbitration agreement is unconscionable "when the party opposing arbitration reasonably shows in law or equity that prohibitive costs are likely to render the arbitral forum inaccessible." (Mendez v. Palm Harbor Homes, Inc. (2002) 111 Wash.App. 446, 465, 45 P.3d 594.) Washington has "adopted a burden-shifting analysis" for considering challenges that an *344arbitration clause "effectively denies [a plaintiff] the ability to vindicate her rights" because of prohibitive costs. (Gandee v. LDL Freedom Enters. (2013) 176 Wash.2d 598, 604, 293 P.3d 1197 (Gandee).) The party opposing arbitration on substantive <mask> grounds must present evidence that arbitration would impose prohibitive costs. (Ibid.) " '[A]n affidavit describing [the party's] personal finances as well as fee information obtained from the American Arbitration Association[ ]' can be sufficient to meet this burden. [Citation.] The party seeking arbitration can then present offsetting evidence as to the likelihood of bearing those costs." (Ibid., quoting and citing Adler, supra, 153 Wash.2d at p. 353, 103 P.3d 773.)


That said, this is also not a case where Ramos did not understand the agreement, was unaware of the arbitration *700provision, or was tricked into signing the contract. As our Supreme Court explained in Baltazar , supra , 62 Cal.4th 1237, 200 Cal.Rptr.3d 7, 367 P.3d 6, though the "adhesive nature of the employment contract requires us to be 'particularly attuned' to [a party's] claim of <mask>," we do not subject employment contracts "to the same degree of scrutiny as '[c]ontracts of adhesion that involve surprise or other sharp practices.' " ( Id. at p. 1246, 200 Cal.Rptr.3d 7, 367 P.3d 6 ; see Farrar, supra, 9 Cal.App.5th at pp. 1268-1269, 215 Cal.Rptr.3d 785 [heightened scrutiny of arbitration provision not merited in absence of evidence of " 'oppression' " or " 'sharp practices' " on the part of the company]; Dotson v. Amgen, Inc. (2010) 181 Cal.App.4th 975, 980-981, 104 Cal.Rptr.3d 341 [low level of procedural unconscionability existed where licensed attorney knowingly entered employment contract with arbitration clause in exchange for generous compensation package].) In sum, while we agree the contract was adhesive, we conclude the degree of procedural unconscionability is relatively minimal under the circumstances of this case.


An unconscionable sales contract contains procedural ele*951merits involving "the contract formation process, which in turn includes the use of high-pressure sales tactics, failure to disclose the terms of a contract, misrepresentation and fraud on the part of the seller, a refusal to bargain on certain critical terms, clauses hidden in fine print, and unequal bargaining power aggravated by the fact that the consumer in many cases cannot speak English * * * The term caveat emptor has been oroded by the code. No longer can a seller hide behind it when acting in an unconscionable manner.” (Nu Dimensions Figure Salons v Becerra, 73 Misc 2d 140, 143-144; Frostifresh Corp. v Reynoso, 54 Misc 2d 119.) The contract must have mutuality of agreement and obligation; if lacking the contract is unenforceable. In making an agreement, the contracting parties create obligations as between themselves — the law of contracts generally contemplates that the parties will meet each other on a footing of social and approximate economic equality. The basic test of <mask> of a contract is whether under the circumstances existing at the time of the creation of the contract the parties were in equality to each other on all levels. The court can look into the contract to make its determination and ascertain how the contract was printed, whether both parties to the contract spoke English, how the contract was made and if the contract was one-sided. (Triple D & E v Van Buren, 72 Misc 2d 569, affd 42 AD2d 841; Division of Triple T Serv. v Mobil Oil Corp., 60 Misc 2d 720, affd 34 AD2d 618.)


Although we find a high degree of procedural <mask>, we conclude the Agreement is not substantively unconscionable under the standard of Sonic II , which requires enforcement of a Berman hearing waiver if the arbitration clause provides an "accessible and affordable arbitral forum."8 ( Sonic II , supra , 57 Cal.4th at p. 1146, 163 Cal.Rptr.3d 269, 311 P.3d 184.)


We observe that the arbitrator has authority under Resolve to extend deadlines for good cause. However, Genworth cannot rely on that provision to excuse an otherwise substantively unconscionable limitations provision in the Resolve guidelines. A provision delegating authority to the arbitrator to resolve question of <mask> is itself unconscionable. ( Pinela v. Neiman Marcus Group, Inc. (2015) 238 Cal.App.4th 227, 254, 190 Cal.Rptr.3d 159.) This principle extends to situations in which an arbitrator is purportedly given authority to enforce a longer limitations period when the period specified in the arbitration agreement is illegal or unconscionable. ( Ibid. )


A party may assert, general contract defenses such as fraud to avoid enforcement of an arbitration agreement. (Southland Corp. v Keating, 465 US 1.) Under the FAA, reference is made to State law to determine whether generally applicable contract defenses such as fraud, duress, or <mask> are avail*417able to invalidate arbitration agreements. (See, Doctor’s Assocs. v Casarotto, 517 US 681; Lozada v Baker Oldsmobile, 91 F Supp 2d 1087.) “It is well established under both CPLR 7503 and 9 USC § 4 that a party may resist enforcement of an agreement to arbitrate on any basis that could provide a defense to or grounds for the revocation of any contract, including fraud, unconscionability, duress, overreaching conduct, violation of public policy, or lack of contractual capacity.” (Matter of Teleserve Sys. [MCI Telecommunications Corp.], 230 AD2d 585, 592.)


The defense of <mask> is an affirmative one (CPLR 3018, subd [b]; see Rzepko v GIA Gem Trade Lab., 115 Misc 2d 755). Although defendant has failed to plead it, in light of the circumstances, the court deems the answer amended pursuant to CPLR 3025 (subd [b]). (See Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3018:22, p 154; C3212:10, p 431.)


Even if this court were to hold that article 2 of the Uniform Commercial Code does not apply to the transaction herein, the validity of the warranty disclaimer would be still in issue since the common law of this jurisdiction has recognized both the implied warranties of quality (Laudisio v Amoco Oil Co., supra, p 248), and the doctrine of <mask> (Matter of Friedman, 64 AD2d 70, 84; Industralease Automated & Scientific Equip. Corp. v R.M.E. Enterprises, supra, p 488; Triple D & E v Van Buren, 72 Misc 2d 569, 577, affd sub nom. D & E Ind. Catering v Antinozzi, 42 AD2d 840; Tai On Luck Corp. v Cirota, 35 AD2d 380, app dsmd 29 NY2d 747; cf. Farnsworth, op. cit., § 4.27).


A lease is a contract, and unless fraud, collusion, mistake, accident or <mask> is shown, the lease provisions should be enforced as agreed to. Nevertheless, some courts have searched for a standard in exercising discretion to deny a prevailing party attorneys’ fees without advancing a rationale consistent with contract law. The two relevant cases cited in Wells (supra) are examples of this.


The notion that an unconscionable bargain should not be given full enforcement is by no means novel. In Scott v. United States (79 U. S. [12 Wall] 443, 445), the Supreme Court stated: ‘ ‘ If a contract be unreasonable * * * but not void for fraud, a court of law will give to the party who sues for its breach damages, not according to its letter, but only such as he is equitably entitled to.” When applying a statute, the courts should consider its objects and purposes and the evils sought to be remedied, and should construe it so as to effectuate the general purposes and suppress the mischief (Casey Development Corp. v. Montgomery County, 212 Md. 138). A statute may be extended by analogy, beyond its apparent boundaries, to include situations which would reasonably have been contemplated by the Legislature in light of the purposes giving impetus to the legislation. (3 Southerland Statutory Construction [3d ed., Horack], § 6005.) Thus, principles of the Uniform Negotiable Instruments Act have been extended beyond the letter of the statute to nonnegotiable instruments (Sheldon v. Blackman, 188 Wis. 4)'. The court reasoned that the Negotiable Instruments Law represented codification of the law on all instruments of debt. Similarly, an Illinois statute authorizing county election contests was held applicable to municipal elections (Harding v. Albert, 373 Ill. 94). A bankruptcy statute, giving a debt ‘ due to the United States ’ ’ priority, was held to apply to a debt due on governmental corporations (Matter of Wilson, 23 F. Supp. 236). A Louisiana statute, imposing on public utilities “ corporations ” the burden of paying expenses, incurred in their investigation by the State’s Public Service Commission, was extended by analogy to natural persons operating a public utility (Gremillion v. Louisiana Pub. Serv. Comm., 186 La. 295). Before the code was enacted, the court in the case of Campbell Soup Co. v. Wentz (172 F. 2d 80) refused to grant specific performance due to the <mask> of a provision in the contract. Extending the rules embodied in the code, the court in Vitex Mfg. Corp. v. Caribtex Corp. (377 F. 2d 795, 799) which was an action for damages resulting from a breach of contract to supply wool for processing said: ‘ ‘ While this contract is not controlled by the Code, the Code is persuasive here because it embodies the foremost modem legal thought concerning commercial transactions.” In Hirtz Commercial Leasing Corp. v. Transportation Credit Clearing House (59 Misc 2d 226, 229, *10revd. on other grounds, 64 Mise 2d 910) where section 2-302 was applied to an equipment lease it was said by the court that ‘‘ In view of the great volume of commercial transactions which are entered into by the device of a lease, rather than a sale, it would be anomalous if this large body of commercial transactions were subject to different rules of law than other commercial transactions which tend to the identical economic result. ’ ’ That provisions of uniform acts have been extended to transactions which are within their intent, although perhaps not within their words, is clear (Agar v. Orda, 264 N. Y. 248).


The policy is one of adhesion. (See Star Credit Corp. v. Molina, 59 Misc 2d 290, Judge Younger ; Uniform Commercial Code, § 2-302 regarding <mask>.) Ambiguities should be resolved in favor of the insured as he is not in a position to bargain as to terms and must for his reasonable protection take the policy “ as is ” with its apparent coverage of the items of baggage. (See Bobrow v. United States Cas. Co., 231 App. Div. 91; Janneck v. Metropolitan Life Ins. Co., 162 N. Y. 574.) The insurer here had an insurable interest. (Friscia v. Safeguard Ins. Co., 57 Misc 2d 759.)


Movant contends that the Board of Trustees of the Bethpage Jewish Community Center failed to disclose other consolidation offers and failed to explore other financial alternatives. The board of a not-for-profit corporation enjoys the benefit of the business judgment rule which bars judicial review of actions taken in good faith and in the exercise of honest judgment. (Consumers Union of U.S., Inc. v State of New York, 5 NY3d 327, 360 [2005].) Absent a showing of bad faith in the form of self-dealing fraud, or <mask>, a court will not overturn or invalidate the decisions made by directors. (Dennis v Buffalo Fine Arts Academy, 15 Misc 3d 1106[A], 2007 NY Slip Op 50520[U] [Sup Ct, Erie County 2007].) There is no reason why the business judgment rule should not apply here and there has been no allegation of bad faith.


Kendall seeks to have a legal ruling issued on reasonableness or <mask> grounds, to tie the charges billed to those self-pay patients who lack any coverage, to reimbursement rates received from patients who do have coverage. However, to make a showing that the price term of the Agreement for Services is substantively unconscionable, Kendall must provide a context about the basis and justification for the price, which may include similar prices for similarly situated patients. (See Moran v. Prime Healthcare Management, Inc. (2016) 3 Cal.App.5th 1131, 1148, 208 Cal.Rptr.3d 303 ( Moran ).) "In addition, 'courts consider not only the market price, but also the cost of the goods or services to the seller [citations], the inconvenience imposed on the seller [citation], and the true value of the product or service.' " ( Ibid. )


In Morris v Capitol Furniture & Appliance Co. (280 A2d 775 [DC Ct App 1971]), it was explicitly held that price alone, absent one of the aggravating factors which indicates lack of meaningful choice, is an insufficient basis for a finding of <mask>. (Accord, Lundstrom v Radio Corp., 17 Utah 2d 114, 405 P2d 339 [1965]; see also, Wilson Trading Corp. v David Ferguson, Ltd., 23 NY2d 398.)


Nevertheless, we tend to agree with the trial court's assessment that the Resolve arbitration timelines would prove to be unreasonably short in a more complex employment dispute such as this one. But we part ways with the *736trial court on the question of whether the Resolve guidelines provide a sufficient safety valve to permit the arbitrator to extend the timelines as necessary. In addressing whether the arbitrator has sufficient discretion to extend timelines, both Baxter and the trial court rely upon Fitz , supra , 118 Cal.App.4th at page 717, 13 Cal.Rptr.3d 88, in which the arbitrator's discretion to depart from default discovery limits was limited unless there was a "compelling need" for additional discovery and a fair hearing was "impossible" without such relief. Here, however, the arbitrator has discretion to extend the timelines merely upon a showing of good cause. Presuming, as we must, that the arbitrator will act reasonably in conformity with the law (see Dotson v. Amgen, Inc. , supra , 181 Cal.App.4th at p. 984, 104 Cal.Rptr.3d 341 ), we cannot say an arbitrator would feel compelled to deny a reasonable request to extend the Resolve arbitration timelines in a complex employment dispute. While the short default arbitration timelines give some cause for concern, we are not convinced they create more than a modest degree of <mask> in light of the arbitrator's discretion to extend them.


Hogg contends that while the trial court did not actually strike her pleadings, the trial court's order excluding evidence of her conversations with her attorneys amounted to a de facto "death penalty" sanction that essentially prevented her from preventing her case. She further maintains the trial court erred by rendering a death penalty sanction as a first sanction because circumstances did not warrant a death penalty sanction. We agree that the trial court's sanction preventing Hogg from presenting evidence regarding her conversations with LCA is certainly not a trivial sanction given her <mask> defense to LCA's breach of contract claim. Nevertheless, although the discovery sanction hobbled Hogg's ability to present her unconscionability argument-in particular her procedural unconscionability argument, which largely hinges on the content of the conversations she had with her attorneys, the sanction did not rise to the level of a death penalty sanction as a technical matter because it did not adjudicate her claim without regard to the merits. Further, Hogg fails to direct this Court to any record evidence showing that she attempted to establish that the order prevented her from presenting a case on the merits. Because of this, we cannot determine that the sanction rose to the level of a death penalty sanction warranting the heightened level of scrutiny. Revco, D.S., Inc., 873 S.W.2d at 396 (mere allegations that a sanction prevented presentment of case on the merits is insufficient; actual evidence of harm is required).


Under the circumstances and conditions of this case, it cannot be said that the doctor and the patient bargained equally. "<mask> has generally been recognized to include an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party. Whether a meaningful choice is present in a particular case can only be determined by consideration of all the circumstances surrounding the transaction. In many cases meaningfulness of the choice is negated by a gross inequality of bargaining power * * * Did each party to the contract, considering his obvious education or lack of it, have a reasonable opportunity to understand the terms of the contract, or were the important terms hidden in a maze of fine print and minimized by deceptive sales practices? * * * But when a party of little bargaining power, and hence little real choice, signs a commercially unreasonable *819contract with little or no knowledge of its terms, it is hardly likely that his consent, or even an objective manifestation of his consent, was ever given to all the terms.” (Williams v Walker-Thomas Furniture Co., 350d 445, 449; Blake v Biscardi, 62 AD2d 975, supra.)


Fifth, the party seeking to avoid the contract must establish both procedural and substantive <mask>, "the former focusing on ' "oppression" ' or *144' "surprise" ' due to unequal bargaining power, the latter on ' "overly harsh" ' or ' "one-sided" ' results." ( Armendariz v. Foundation Health Psychcare Services , Inc. (2000) 24 Cal.4th 83, 114, 99 Cal.Rptr.2d 745, 6 P.3d 669 ( Armendariz ).) Although both must be present, we have stated that "they need not be present in the same degree. 'Essentially a sliding scale is invoked which disregards the regularity of the procedural process of the contract formation, that creates the terms, in proportion to the greater harshness or unreasonableness of the substantive terms themselves.' [Citations.] In other words, the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa." ( Ibid. )


One of the cases cited by defendant which held that a separation agreement was unconscionable as a matter of law is Tal v Tal (158 Misc 2d 703 [Sup Ct, Nassau County 1993]). However, in voiding the agreement in that case, Judge Segal must have had some uncontroverted proof of the circumstances surrounding the execution of the agreement before him because his decision was, “[b]ased upon the respective financial circumstances of the parties at the time of the execution of the agreements, to wit: the husband being in full control of all marital assets and income and the wife having no assets or income; the fact that the husband’s counsel prepared the agreements; that the wife had no counsel and was aiforded no financial disclosure, and the terms of the agreements themselves which give 100% of all marital assets to the husband” (Tal v Tal, 158 Misc 2d 703, 710). The second case relied on by defendant in support of her contention that this court can decide the issue of <mask> solely by looking at the terms of the parties’ agreement is Lyons v Lyons (289 AD2d 902 [3d Dept 2001]). Again, like in Tal, the Court in Lyons had the benefit of affirmations and pleadings which described the events surrounding the preparation and execution of the separation agreement and the parties’ financial situation at that time.


Indeed, the Rent-A-Center court expressly stated that "[i]n some cases the claimed basis of invalidity for the contract as a whole will be much easier to establish than the same basis as applied only to the *96severable agreement to arbitrate." ( Rent-A-Center , supra , 561 U.S. at p. 71, 130 S.Ct. 2772, italics added.) And, after concluding that the plaintiff's <mask> challenge in that case was directed to the agreement as a whole rather than specifically at the delegation clause, the high court speculated: "It may be that had Jackson challenged the delegation provision by arguing that these common [allegedly unconscionable] procedures as applied to the delegation provision rendered that provision unconscionable, the challenge should have been considered by the court. To make such a claim based on the discovery procedures, Jackson would have had to argue that the limitation upon the number of depositions causes the arbitration of his claim that the Agreement is unenforceable to be unconscionable. That would be, of course, a much more difficult argument to sustain than the argument that the same limitation renders arbitration of his factbound employment-discrimination claim unconscionable. Likewise, the unfairness of the fee-splitting arrangement may be more difficult to establish for the arbitration of enforceability than for arbitration of more complex and fact-related aspects of the alleged employment discrimination." ( Id. at pp. 72-74, 130 S.Ct. 2772.) Thus, Rent-A-Center , itself, makes clear "that the focus of the court's attention must be on whether the particular challenge is directed at the delegation clause, not whether the same challenges are also directed at the agreement or agreements into which the delegation clause is embedded or nested." ( Nielsen , supra , 22 Cal.App.5th at p. 1111, 232 Cal.Rptr.3d 282.) Moreover, to reject a legitimate contractual challenge to a severed delegation clause merely because similar grounds are suggested as a basis for invalidating the related arbitration provision or entire contract is nonsensical and violates the FAA's mandate that courts "must 'place[ ] arbitration agreements [such as delegation clauses] on an equal footing with other contracts.' " ( Nielsen , at p. 1110, 232 Cal.Rptr.3d 282, quoting Rent-A-Center .) Thus, under the facts of this case, the trial court properly determined that it was the proper forum for determining arbitrability under the RPA.6 We therefore turn next to the merits of the court's arbitrability decision. *982C. The Delegation Clause and Arbitration Provision Are Not Enforceable


Lopez also raised the defense of <mask> in the trial court. Agreements to arbitrate disputes between employers and employees are generally enforceable under Texas law. In re Poly-America, L.P. , 262 S.W.3d 337, 348 (Tex. 2008). There is nothing per se unconscionable about an agreement to arbitrate employment disputes and Texas law has historically favored agreement to resolve such disputes. Id. But an arbitration agreement is invalid if it is unconscionable. See In re Palm Harbor Homes, Inc. , 195 S.W.3d 672, 677-79 (Tex. 2006) ; In re Halliburton , 80 S.W.3d at 572. Because the law favors arbitration, the party opposing arbitration bears the burden to prove unconscionability. See In re FirstMerit Bank, N.A. , 52 S.W.3d 749, 756 (Tex. 2001).


**707In any event, contrary to what the majority suggests, our cases establish that prolixity itself is not problematic; for purposes of a procedural <mask> analysis, surprise " ' "occurs ... where the allegedly unconscionable provision is hidden within a prolix printed form." ' " ( Pinnacle , supra , 55 Cal.4th at p. 247, 145 Cal.Rptr.3d 514, 282 P.3d 1217, italics added.) There is nothing hidden about the arbitration agreement in this case. It is not buried in a multipage document that addresses numerous other matters, but *746appears in a relatively short document that almost exclusively addresses arbitration. In a heading at the top of the agreement's first page, set apart from the body of the agreement, the word "ARBITRATION" appears in large, bolded, all caps type. In a stand-alone provision at the top of the second page, the agreement states, in large, all caps, italicized type, that Kho is "AGREEING TO THIS BINDING ARBITRATION PROVISION." When Kho signed the arbitration agreement, he also signed a separate two-page agreement containing a stand-alone, bolded-type paragraph explaining that the parties understood and were voluntarily agreeing to resolve "any disputes" regarding Kho's employment "exclusively in accordance with binding arbitration," and setting forth some of the features of the arbitration procedure, i.e., "a retired California Superior Court Judge" will conduct the arbitration and "[t]he arbitration proceedings shall be governed by the Federal Arbitration Act, and carried out in conformity with the procedures of the California Arbitration Act." The separate agreement also expressly stated that Kho had executed or would "execute a more comprehensive arbitration agreement with the Company." In finding surprise, the majority simply ignores these considerations, as well as precedent finding no surprise under analogous circumstances. ( Pinnacle , supra , 55 Cal.4th at p. 247, fn. 12, 145 Cal.Rptr.3d 514, 282 P.3d 1217 [in finding no surprise, citing fact that arbitration provisions "appear in a separate article under a bold, capitalized, and underlined caption titled 'ARTICLE XVIII CONSTRUCTION DISPUTES' "]; Bigler v. Harker School (2013) 213 Cal.App.4th 727, 737, 153 Cal.Rptr.3d 78 [no surprise where arbitration clause "located at the top of the second page in a two-page document with the heading 'Arbitration' in boldfaced font"]; *150Crippen v. Central Valley RV Outlet (2004) 124 Cal.App.4th 1159, 1165, 22 Cal.Rptr.3d 189 [emphasizing that arbitration provision "was printed on a separate page" with " 'Arbitration Addendum' at the top," and "was signed separately"].)


Although the Agreement states that respondent is an independent contractor, his administrative wage claim is based on the contention that he was misclassified as an independent contractor, and was instead an employee, entitled to certain protections under the Labor Code. Appellants devote much *209of their briefing to the argument that California law regarding <mask> in the employee/employer context is inapplicable here because respondent was an independent contractor. According to appellants, as an independent contractor, respondent falls somewhere between an employee and a consumer for purposes of determining unconscionability, and is not entitled to the level of protections given to employees under California law. (Compare Armendariz , supra , 24 Cal.4th 83, 99 Cal.Rptr.2d 745, 6 P.3d 669 [addressing unconscionability in employment context] *843with Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 190 Cal.Rptr.3d 812, 353 P.3d 741 [addressing unconscionability in consumer context].)6 We disagree.


For this reason, the majority's assurance that an identical arbitration provision "might pass muster under less coercive circumstances" (maj. opn., ante , 251 Cal.Rptr.3d at p. 735, 447 P.3d at p. 697) rings hollow. Because of the economic pressures faced by *147prospective and existing employees, the majority's finding of <mask> will surely be the rule in the vast majority of cases in the employment context, regardless of the other circumstances the majority cites. In other words, with few exceptions, as to employees presented with a "sign or you're unemployed" choice, the ability to read, reflect, and understand the agreement does not make the situation *744"less coercive" in any meaningful sense. (Maj. opn., ante , 251 Cal.Rptr.3d at pp. 733-734, 447 P.3d at p. 696.) More broadly, because it would not be difficult for a court to find a "relatively low degree of substantive" unfairness in an adhesion contract (maj. opn., ante , 251 Cal.Rptr.3d at p. 729, 447 P.3d at p. 693), the majority's new rule casts significant doubt on the enforceability of many contractual terms in the employment context, not just arbitration provisions.


The doctrine of <mask> is relatively new to the law of landlord-tenant. Effective 1976, section 235-c of the Real Property Law, like the statutory warranty of habitability, attempts to place the tenant in legal parity with the landlord by recognizing that a residential lease is more akin to the purchase of shelter and services rather than the conveyance of a feudal estate, and that the law of sales, derived from contract principles, provides an analogy better suited than the outmoded law of property to determine the respective obligations of landlord and tenant. (Park West Mgt. Corp. v Mitchell, 47 NY2d 316, citing Green v Superior Ct., 10 Cal 3d 616, 626-627.)


In a previous decision in that case, Sonic-Calabasas A, Inc. v. Moreno (2011) 51 Cal.4th 659, 121 Cal.Rptr.3d 58, 247 P.3d 130 (Sonic I ), our Supreme Court had "held as a categorical rule that it is contrary to public policy and unconscionable for an employer to require an employee, as a condition of employment, to waive the right to a Berman hearing." (Sonic II , supra , 57 Cal.4th at p. 1124, 163 Cal.Rptr.3d 269, 311 P.3d 184.) The Sonic I court "did not invalidate the arbitration agreement at issue," but instead "held that if one of the parties is dissatisfied with the result of the Berman hearing, it [could] move to arbitrate the wage dispute consistent with the arbitration agreement, just as a dissatisfied party can obtain a trial in court without such an agreement." (Sonic II , at p. 1124, 163 Cal.Rptr.3d 269, 311 P.3d 184.) The United States Supreme Court granted certiorari before vacating the judgment and remanding the case to the California Supreme Court for consideration in light of AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 131 S.Ct. 1740, 179 L.Ed.2d 742 (Concepcion ), in which "the high court clarified the limitations that the FAA imposes on a state's capacity to enforce its rules of <mask> on parties to arbitration agreements." (Sonic II , at p. 1124, 163 Cal.Rptr.3d 269, 311 P.3d 184.)


To the extent that Brinkley suggests that she did not have a meaningful choice with respect to the RIC on the ground that she "never received a copy of the signed agreement from REIE," we find this contention to be without merit. The very first line of the document states: "To print this document-right-click on your mouse and select print from the popup menu." Brinkley was provided the opportunity to print and retain (and review repeatedly) a copy of the RIC, with her e-signature, during this process. Given these circumstances, and the fact that Brinkley has not suggested that she was unable to print the document or did not have access to a printer, the fact that Brinkley was given the opportunity to print the document in this manner is *341sufficient to overcome Brinkley's contention that the RIC should be considered procedurally unconscionable because she did not receive a signed copy of it.11 *24Brinkley's contention that she was not provided with a copy of the assignment of the RIC between REIE and Monterey is of no significance for purposes of our procedural <mask> analysis. The RIC specifically informs consumers that the "Seller may assign this Agreement to any third party without prior notice to you," and that "[u]pon any such assignment, such third party will become the holder of this agreement and your creditor." Beyond this, the RIC even informs consumers that "Seller intends to assign this agreement to Monterey Financial Services, [I]nc., 4095 Avenida de la Plata, Oceanside, CA 92056 ('Monterey')," and that "[a]fter the assignment of this Agreement to Monterey, all questions concerning the terms of this Agreement or payments should be directed to Monterey at its address indicated above." The portion of the RIC that included signature lines related to an assignment of the contract was specifically marked "TERMS CONTAINED IN THIS BOX ARE NOT PART OF THE BUYER'S AGREEMENT." In these circumstances, the fact that Brinkley was not provided a copy of the assignment between REIE and Monterey did not affect Brinkley's ability to have a meaningful choice with respect to entering into the RIC, nor did it in any way prejudice her ability to understand the terms of the agreement or have a meaningful opportunity to understand her rights and obligations.


Here, we have found that, in addition to at least a moderate level of procedural <mask>, the central purpose of the arbitration provision is to evade the statutory protections and limit the remedies available to respondent, as reflected in the numerous specific provisions that are substantively unconscionable. (See Armendariz , supra , 24 Cal.4th at p. 124, 99 Cal.Rptr.2d 745, 6 P.3d 669.) "Such multiple defects indicate a systematic effort to impose arbitration" on respondent "as an inferior forum that works to [appellants'] advantage." ( Ibid . ) Thus, because there is no single provision that can be stricken to "remove the unconscionable *849taint from the agreement," the trial court did not abuse its discretion when it found the arbitration clause could not be enforced. ( Id. at pp. 122, 124-125, 99 Cal.Rptr.2d 745, 6 P.3d 669.)14


Regarding the <mask> of the rent increase provisions in defendants' leases and the legality of the emergency rent stabilization agreements, the court ruled as follows: "The Court finds that Defendants' rent increase provisions (including, but not limited to, annual increases, catch-up provision increases, and pass through cost provision increase) are not procedurally unconscionable. The Court finds the leases are lawful and not adhesion contracts. As to the lease provisions concerning the right of first refusal, release, and the arbitration provision, the Court finds these provisions violated the [MRL]. Those provisions are severed from the lease and amendments, and the remainder of the agreements are deemed to be enforceable as a matter of law."


A promise made with a preconceived and undisclosed intention of not performing it may be viewed as a misrepresentation of a present material fact sufficient to maintain a claim of fraud independent of a contract. (See Sabo v Delman, 3 NY2d 155 [1957]; Brown v Lockwood, 76 AD2d 721, 731-733 [2d Dept 1980].) The trial court in Cioffi-Petrakis cited to Sabo and explicitly based its decision on this principle of law. (E.C.-P. v P.P., 33 Misc 3d 1233[A], 2011 NY Slip Op 52221[U] [Sup Ct, Nassau County 2011].) The court did not change or extend the principles of law under which marital agreements are typically analyzed: <mask> and overreaching. Indeed, the trial court and the Appellate Division previously rejected a challenge to the Cioffi-Petrakis agreement on such grounds. (See Cioffi-Petrakis v Petrakis, 72 AD3d 868 [2d Dept 2010].)


“The concept of <mask> . . . does not create a new cause of action to recover damages . . . but, rather, provides a defense for a party opposing enforcement of a contract or a cause of action for rescission of a contract. Thus, the plaintiffs’ causes of action founded upon unconscionability do not set forth cognizable claims and should have been dismissed.” (Bevilacque v Ford Motor Co., 125 AD2d 516, 519 [2d Dept 1986]; see also Lewis v Hertz Corp., 181 AD2d 493, 495 [1st Dept 1992].) The eleventh cause of action is thus dismissed.


This requirement applies only to an arbitration clause contained in a contract of adhesion. While we find it unnecessary to review the procedural <mask> of Kho's execution of the Agreement, we have no doubt that the Agreement was a contract of adhesion, given the circumstances of its execution. (See Sonic II, supra, 57 Cal.4th at p. 1133, 163 Cal.Rptr.3d 269, 311 P.3d 184 [a contract of adhesion is drafted by a party of superior bargaining strength and gives to the other party only the opportunity to adhere to the contract or reject it].)


The dissent's primary objection is that our analysis evinces hostility to arbitration, discriminates against arbitration, or improperly prefers a nonarbitral forum. (Dis. opn., post , 251 Cal.Rptr.3d at pp. 762-763, 447 P.3d at pp. 720-722.) Yet arbitration is premised on the parties' mutual consent, not coercion (see Stolt-Nielsen S. A. v. AnimalFeeds Int'l Corp. , supra , 559 U.S. at p. 681, 130 S.Ct. 1758 ), and the manner of the agreement's imposition here raises serious concerns on that score. Moreover, we have repeatedly stressed that the substantive <mask> of an arbitration agreement "is viewed in the context of the rights and remedies that otherwise would have been available to the parties." ( Sanchez , supra , 61 Cal.4th at p. 922, 190 Cal.Rptr.3d 812, 353 P.3d 741, citing Sonic II , supra , 57 Cal.4th at pp. 1146-1148, 163 Cal.Rptr.3d 269, 311 P.3d 184.) The dissent supports its claim with repeated quotations to our observations about civil litigation , not the arbitral process under review. The argument is thus premised on a false equivalence between the system of civil litigation and the complex arbitral procedure *736adopted in this case, which features few, if any, of the benefits typically associated with arbitration and regarded as fundamental. (See Concepcion , supra , 563 U.S. at pp. 344-345, 131 S.Ct. 1740.) While "the Berman statutes promote the very objectives of 'informality,' 'lower costs,' 'greater efficiency and speed,' and use of 'expert adjudicators' that the high court has deemed 'fundamental attributes of arbitration,' " the arbitration agreement here undermines those objectives by causing an "increase in cost, procedural rigor, complexity, or formality." ( Sonic II , supra , 57 Cal.4th at p. 1149, 163 Cal.Rptr.3d 269, 311 P.3d 184, quoting Concepcion , supra , 563 U.S. at p. 348, 131 S.Ct. 1740.)


But the majority's effort is perhaps not as subtle or covert as it might at first appear. The high court, in discussing the " 'great variety' of 'devices and formulas' " that judges hostile to arbitration have used to invalidate arbitration agreements, has expressly "not[ed] that California's courts have been more likely to hold contracts to arbitrate unconscionable than other contracts." ( *765Concepcion , supra , 563 U.S. at p. 342, 131 S.Ct. 1740.) Any reader of this court's opinions would surely be able to confirm the high court's observation. Any such reader would also be able to discern that the <mask> analysis and contract principles this court applies in arbitration cases - including **723the *171majority's "comparative benefit" rationale for invalidating the arbitration agreement here, its insistence that there be separate consideration for Kho's agreement to arbitrate claims covered by the Berman procedure, its failure to consider the parties' overall bargain and the detriment OTO suffered in determining what Kho received in return for his agreement to arbitrate, and its reliance on factors to find procedural unconscionability that our precedents hold are not factors - are indeed very different from the analysis and principles the court applies in nonarbitration cases.


themselves.’ [Citation.] In other words, the more substantively oppressive the contract term, the less evidence of procedural <mask> is required to come to the conclusion that the term is unenforceable, and vice versa.” (Armendariz, supra, 24 Cal.4th at p. 114.) Consistent with its position, cases on which American Surety relies in its supplemental briefing address circumstances where the courts found the particular matter of unconscionability in question to be a pure issue of law presented on undisputed facts. (Carmona v. Lincoln Millennium Car Wash, Inc. (2014) 226 Cal.App.4th 74, 89, fn. 6 (Carmona) [whether a particular provision was unconscionable presented a question of law and the evidence in the case was not disputed]; D.C. v. Harvard-Westlake School (2009) 176 Cal.App.4th 836, 868 [regarding unconscionability argument, “[w]e have the discretion to hear a newly raised question of law that can be decided on undisputed facts appearing in the record”].) However, “unconscionability is, in the absence of a material factual dispute, a question of law that may be raised for the first time on appeal.” (Lennar Homes of California, Inc. v. Stephens (2014) 232 Cal.App.4th 673, 686, citing Carmona, supra, 226 Cal.App.4th at p. 89, fn. 6, italics added.) Additionally, “[p]rocedural unconscionability is ‘inherently fact-specific.’ ” (Prima Donna Development Corp. v. Wells Fargo Bank, N.A. (2019) 42 Cal.App.5th 22, 42.) American Surety in its substantive briefing on unconscionability asserts that “each of the elements of unconscionability is present.” Among other things, in arguing unconscionability, American Surety raises the codefendants’ weak bargaining power, the absence of opportunity for meaningful negotiation, “setting of bail without reference to the defendant’s financial abilities or his individual dangerousness,” and additional issues addressed to codefendants’ weak bargaining power, including dangers presented to defendants in being incarcerated in pretrial detention as opposed to being freed on bail and the effect of pretrial detention on defendants in terms of potential job loss, loss of


On the procedural <mask> front, Hogg maintains that the Contingency Agreement should be reversed because as between her and her attorneys, her attorneys had more bargaining power, plus they had an ethical and fiduciary duty to advise her to do what was in her best interest. But unequal bargaining power between the parties, standing alone, does not make a contract procedurally unconscionable. Whataburger Rest., L.L.C. v. Cardwell , No. 08-13-00280-CV, 545 S.W.3d 73, 79-80, 2017 WL 3167487, at *4 (Tex.App.-El Paso July 26, 2017, no pet.) (analyzing substantive unconscionability in arbitration agreement context). As for any ethical considerations, the uncontroverted evidence shows her attorneys discharged their ethical duty to her by informing her of the conflict of interest and advising her to seek independent counsel, which she forewent.


arbitration, then the court should decide that question just as it would decide any other question that the parties did not submit to arbitration, namely, independently. These two answers flow inexorably from the fact that arbitration is simply a matter of contract between the parties; it is a way to resolve those disputes -- but only those disputes -- that the parties have agreed to submit to arbitration.’ ” (Sandoval-Ryan, supra, 58 Cal.App.5th at p. 223.) “Courts presume that the parties intend courts, not arbitrators, to decide threshold issues of arbitrability. [Citation.] Accordingly, ‘ “[t]here are two prerequisites for a delegation clause to be effective. First, the language of the clause must be clear and unmistakable. [Citation.] Second, the delegation must not be revocable under state contract defenses such as fraud, duress, or <mask>.” [Citation.] The “clear and unmistakable” test reflects a “heightened standard of proof” that reverses the typical presumption in favor of the arbitration of disputes. [Citation.]’ [Citation.] Where the agreement is silent or ambiguous on the question of who decides threshold arbitrability questions, the court and not the arbitrator should decide arbitrability so as not to force unwilling parties to arbitrate a matter they reasonably thought a judge, not an arbitrator, would decide.” (Sandoval-Ryan, supra, 58 Cal.App.5th at p. 223.) “[W]hen a party is claiming that an arbitration agreement is unenforceable, it is important to determine whether the party is making a specific challenge to the enforceability of the delegation clause or is simply arguing that the agreement as a whole is unenforceable. If the party’s challenge is directed to the agreement as a whole--even if it applies equally to the delegation clause--the delegation clause is severed out and enforced; thus, the arbitrator, not the court, will determine whether the agreement is enforceable. In contrast, if the party is making a specific challenge to the delegation clause, the court must determine whether the delegation clause itself may be enforced (and can only delegate the general issue of enforceability to the arbitrator if it first


The trial court did not abuse its discretion in rendering the discovery sanction or excluding the evidence at issue; we must defer to the trial court's findings that Hogg told the truth about making recordings in the Ryburn email, and that her failure to produce those recordings was an attempt to resist discovery. Based on the record before the trial court, summary judgment was proper because Hogg could not establish a fact question on <mask>. We discern no reversible errors. The judgment of the trial court is affirmed.


" 'Both procedural and substantive <mask> must be present for the court to refuse to enforce a contract under the doctrine of unconscionability although " 'they need not be present in the same degree.' " [Citation.] Essentially the court applies a sliding scale to the determination: " '[T]he more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.' " ' " ( Farrar, supra, 9 Cal.App.5th at p. 1265, 215 Cal.Rptr.3d 785.) Absent conflicting evidence, the trial court's unconscionability determination is a question of law subject to de novo review. ( Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236, 145 Cal.Rptr.3d 514, 282 P.3d 1217 ; Farrar , at p. 1265, 215 Cal.Rptr.3d 785.)


The “Practice Commentary” anent, subdivision (1) of section 2-302 of the Uniform Commercial Code, further indicates that *41“<mask> is not a jury question but a question of law to be determined by the court alone.” (See Buerger & O’Connor, McKinney’s Cons Laws of NY, Book 62½, Uniform Commercial Code, pp 192-193; emphasis added.) And, it is recalled that “ ‘[e]very contract implies good faith and fair dealing between the parties’ ” (O’Neil Supply Co. v Petroleum Heat & Power Co., 280 NY 50, 54).


Standardized contracts are not, however, unenforceable merely because of the inequality of bargaining power of the parties, without additional proof of <mask> or violation of public policy. (Finkle & Ross v A.G. Becker Paribas, Inc., 622 F Supp 1505.) No challenge is made to ETS’ contractual right to cancel any test score "if ETS believes there is reason to question the score’s validity” (emphasis added). In this action Brian Dalton does not seek to avoid the terms of the contract, merely to enforce them.


For the preceding reasons, I conclude that the arbitration provision here is not unusual and that its substance does not contribute to a finding that the "degree of procedural unconscionability" in this case was, as the majority asserts, "unusually" and " 'extraordinarily high.' " (Maj. opn., ante , 251 Cal.Rptr.3d at pp. 719, 726, 447 P.3d at pp. 685, 690.) Supporting this conclusion is the fact that in cases involving a virtually identical arbitration provision, we did not find an element of surprise that increased the degree of procedural <mask>. ( Sonic II , supra , 57 Cal.4th at pp. 1125-1126, 163 Cal.Rptr.3d 269, 311 P.3d 184 ; Sonic I , supra , 51 Cal.4th at pp. 669-670, 121 Cal.Rptr.3d 58, 247 P.3d 130 ; Little , supra , 29 Cal.4th at pp. 1069-1070, 130 Cal.Rptr.2d 892, 63 P.3d 979.)


As a preliminary matter, appellants argue that certain provisions in the arbitration clause, including the bar to recovery of attorney fees and the Private Attorneys General Act (PAGA) waiver, cannot be found unconscionable because respondent has not attempted to pursue those claims or remedies in his administrative wage claim. The question in determining <mask>, however, does not involve comparing the terms of the arbitration clause with the non-arbitration claims respondent is pursuing. Rather, under Civil Code section 1670.5, subdivision (a), we review the arbitration clause for substantive unconscionability at the time the agreement was made. (See Sonic II , supra , 57 Cal.4th at p. 1134, 163 Cal.Rptr.3d 269, 311 P.3d 184 [" 'In determining unconscionability, our inquiry is into whether a contract provision was "unconscionable at the time it was made" ' "].)


The burden of proving <mask> rests upon the party asserting it. ( Sanchez , supra , 61 Cal.4th at p. 911, 190 Cal.Rptr.3d 812, 353 P.3d 741 ; Sonic II , supra , 57 Cal.4th at p. 1148, 163 Cal.Rptr.3d 269, 311 P.3d 184.) "Where, as here, the evidence is not in conflict, we review the trial court's denial of arbitration de novo." ( Pinnacle , supra , 55 Cal.4th at p. 236, 145 Cal.Rptr.3d 514, 282 P.3d 1217.)


*157The majority's view that Kho received little or nothing "in return" (maj. opn., ante , 251 Cal.Rptr.3d at p. 735, 447 P.3d at p. 698) for the Berman waiver rests on numerous other exaggerations, unproven or erroneous assumptions, miscalculations, *753and/or mischaracterizations regarding the value of the Berman procedures. First, as the majority acknowledges, when an employee files an administrative claim, "[t]here is no [statutory] requirement that a Berman hearing be held" (maj. opn., **713ante , 251 Cal.Rptr.3d at p. 737, 447 P.3d at p. 700) and the Labor Commissioner has "discretion to ... take 'no further action ... on the complaint' " (ibid ., quoting Lab. Code, § 98, subd. (a) ). Thus, when Kho signed the arbitration agreement - which is the relevant time for assessing <mask> ( Civ. Code, § 1670.5, subd. (a) ) - it was entirely speculative whether any of the Berman procedure's asserted benefits would be available to him, and the only thing he actually relinquished was the opportunity to ask the Labor Commissioner to exercise discretion to conduct legally nonbinding administrative proceedings on a claim.


In Concepcion , the United States Supreme Court cautioned that even when a court purports to apply a doctrine normally thought to be generally applicable, such as <mask>, it may not " 'rely on the uniqueness of an agreement to arbitrate as a basis for a state-law holding that enforcement would be unconscionable, for this would enable the court to effect what ... the state legislature cannot.' [Citation.]" ( Concepcion, supra , 563 U.S. at p. 341, 131 S.Ct. 1740.) According to our nation's high court, "[a]n obvious illustration of this point would be a case finding unconscionable or unenforceable as against public policy consumer arbitration agreements that fail to provide for judicially monitored discovery. ... A court might reason that no consumer would knowingly waive his right to full discovery, as this would enable *275companies to hide their wrongdoing. Or the court might simply say that such agreements are exculpatory-restricting discovery would be of greater benefit to the company than the consumer, since the former is more likely to be sued than to sue. [Citation.] And, the reasoning would continue, because such a rule applies the general principle of unconscionability or public-policy disapproval of exculpatory agreements, it is applicable to 'any' contract and thus preserved by § 2 of the FAA. In practice, of course, the rule would have a disproportionate impact on arbitration agreements ...." ( Id . at pp. 341-342, 131 S.Ct. 1740.) As such, it would be preempted by the FAA.


A similar situation was presented in United States Leasing Corp. v Franklin Plaza Apts. (65 Misc 2d 1082). The court refused to grant judgment for accelerated lease payments stating: "<mask> arises from the inequity of compelling payment for equipment that cannot be used without the right to interpose a defense or set-off. From the point of view of the user it makes little difference that he is labeled a buyer - or lessee. In either case the agreement is unconscionable if the user must pay for something he cannot use without the right to assert a meritorious defense or set-off.” (Supra, at 1086.) In Industralease Automated & Scientific Equip. Corp. v R. M. E. Enters. (58 AD2d 482, 489-490), the court stated:


" '[T]here are degrees of procedural <mask>. At one end of the spectrum are contracts that have been freely negotiated by roughly equal parties, in which there is no procedural unconscionability. ... Contracts of adhesion that involve surprise or other sharp practices lie on the other end of the spectrum. [Citation.] Ordinary contracts of adhesion, although they are indispensable facts of modern life that are generally enforced [citation], contain a degree of procedural unconscionability even without any notable surprises, and "bear within them the clear danger of oppression and overreaching." ' " ( Baltazar , supra , 62 Cal.4th at p. 1244, 200 Cal.Rptr.3d 7, 367 P.3d 6.) "[C]ourts must be 'particularly attuned' to this danger in the employment setting, where 'economic pressure exerted by employers on all but the most sought-after employees may be particularly acute.' " ( Ibid. )


Because the Water Authority is entitled to judgment on its declaratory relief cause of action declaring the RSI clause invalid and unenforceable as an unconstitutional condition, we need not address other possible grounds for striking the offensive provision. We need not decide whether the provision, although admittedly included in the water conservation program contracts with the "object, directly or indirectly" of insulating Metropolitan from suits for the violation of law, does not run afoul of Civil Code section 1668 because it does not "exempt" it from liability,25 or whether the provision violates broader principles of <mask> and public policy.


The lease agreement under discussion was entered into by commercial entities. While “courts have not been solicitous of businessmen in the name of unconscionability” (White & Summers, op. cit., p 170), and will generally not *77invalidate an agreement in the name of <mask> in commercial settings (op. cit., p 172), it is nonetheless apparent that small businessmen can also be victimized by unconscionable practices. However, although some courts have refused to enforce certain clauses in commercial contexts even in the absence of procedural unconscionability (Fairfield Lease Corp. v Marsi Dress Corp., 60 Misc 2d 363), such cases are rare. (See State of New York v Wolowitz, supra, p 68.)


It is safe to say therefore that the old common-law rule has become substantially eroded in New York and that it may not be unreasonable to expect it to be abandoned entirely when it would be again considered by the Court of Appeals. This was the view espoused by Mendes & Mount in their appellate brief submitted on the appeal from the order of Justice Stecher granting summary judgment on the issue of base rent. They further argued that the <mask> of a lease provision purporting to relieve plaintiff of an obligation to mitigate permitted *488them to resist enforcement as against public policy. Although the rule of no duty to mitigate has strong precedential authority, I hold that under a common-law system such as ours, a litigant espousing a legal viewpoint not recognized as authoritative has the right to press his views to the highest court of this State (the Court of Appeals) and seek to have that court change the law, and also to seek to have an unconscionable contractual obligation held to be against public policy and therefore unenforceable.


The court will next address Damian’s arguments that the insurance contract issued to Levy is void as a contract of adhesion and that the contract is oppressive and unconscionable. Initially, the court notes that Damian, who is not a party to the contract, is without standing to raise a claim of <mask> or a claim based upon the terms or bargaining conditions of the contract (see, County of Tioga v Solid Waste Indus., 178 AD2d 873 [1991]). Notwithstanding that Damian has no standing to raise these issues, upon the affidavits of Levy and Mr. Cooper, and the facts that NASW endorsed the policy and the sexual misconduct provision (see, American Home Assur. *783Co. v Oraker, Colo Dist Ct, Mar. 5, 1992, 90 CV6483, supra)-, the Superintendent of Insurance approved the policy and the sexual misconduct provision (see, American Home Assur. Co. v Stone, 61d 1321, supra) and New York does not require social workers and psychotherapists to purchase malpractice insurance (see, American Home Assur. Co. v Stone, 61d 1321, supra; McConaghy v RLI Ins. Co., 882 F Supp 540; American Home Assur. Co. v Smith, 218 Ga App 536, 462 SE2d 441; American Home Assur. Co. v Cohen, 124 Wash 2d 865, 881 P2d 1001, supra; Irvin v Drown, Ohio CP Ct, July 8, 1996, No. 94 CVA 97-4941, supra), the court concludes that there is no basis to find that the subject contract of insurance is a contract of adhesion or unconscionable. Further, the court notes that the fact that a provision happens to benefit a carrier in a particular instance is not a ground for a court to set aside a contract provision as unconscionable (see, Allstate Ins. Co. v Jacobs, 208 AD2d 578 [1994]).


Notwithstanding the aforementioned holdings, the Appellate Division, in several cases, has held that a summary judgment motion should be denied where the mortgagor asserts a valid defense, including tender of the entire amount then due, the mortgagee’s opportunistic bad faith, or an unconscionable act. (See e.g. Grand Pac. Fin. Corp. v 97-111 Hale, LLC, 123 AD3d 764 [2d Dept 2014] [fact issues existed as whether mortgagee acted in bad faith and engaged in oppressive and unconscionable conduct]; New York Guardian Mortgagee Corp. v Olexa, 176 AD2d at 402; European Am. Bank v Harper, 163 AD2d *405458, 461 [2d Dept 1990] [equitable remedy of foreclosure may be denied to prevent overreaching or other unconscionable conduct by mortgagee]; Di Matteo v North Tonawanda Auto Wash, 101 AD2d 692, 692 [4th Dept 1984] [“<mask> on the part of the mortgagee, however, has long been recognized as a defense to enforcement of an acceleration provision”], appeal dismissed 63 NY2d 675 [1984].)


The best definition of the modern doctrine of <mask> appears in .the majority opinion in Williams v. Walker-Thomas Furniture Co. (350 F. 2d 445) written by Judge J. Skelly Weight before the Uniform Commercial Code was effective in Washington, D. C., but which has since been cited as setting' the guidelines even where the defense is raised under the Uniform Commercial Code. (Matter of State of New York v. ITM, 52 Misc 2d 39.) As Judge Weight stated, the definition includes “ an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.” (Williams, supra, p. 449.)


Although the court in ITM, commenting on prices charged from 2 to 6 times cost, declared that "these excessively high prices constituted 'unconscionable contractual provisions’ within the meaning of subdivision 12 of section 63 of the Executive Law”, it noted that "even if the prices charged were not unconscionable per se, they were unconscionable within the context of this case” (52 Misc 2d, supra, at 53). The case does not support the proposition that prices charged well above cost constitute <mask> per se. ITM (supra) was cited by Judge Wachtler in Jones v Star Credit Corp. (59 Misc 2d 189) for the proposition that a $1,234 price for a $300 freezer was unconscionable, but in that case there was clear overreaching by unscrupulous merchants preying on uneducated consumers and welfare recipients. While excessive price can be a signal, the touchstone of unconscionability is oppression.


While defendants’ affidavit details the allegedly onerous nature of the agreement, or its substantive <mask>, there are no factual allegations to inform the court of the procedural aspect of that defense, such as whether there was a gross inequality of bargaining power, whether high pressure or deceptive practices were utilized and the like. On the other side of the coin, plaintiff, perhaps feeling no need to reply with respect to the unpleaded affirmative defense, has not attempted to rebut the evidence of substantive unconscionability by showing that the contractual clauses in issue have a legitimate commercial purpose. (See Epstein, Unconscionability: A Critical Reappraisal, 18 J Int L & Econ 293.)


. See, however, Long Is. Opthalmologic Assoc. v West Broadway Professional Bldg. (88 AD2d 585) which holds that section 235-c of the Real Property Law concerns itself only with procedural <mask>. The statute makes no reference to the distinction between substantive and procedural unconscionability, and is identical, except for its references to real property leases, to section 2-302 of the Uniform Commercial Code. Since the Real Property Law was intended to codify the protection afforded tenants by several cases analogizing to the Uniform Commercial Code (see Governor’s Memorandum, NY Legis Ann, 1976, p 406), it seems unlikely that section 235-c of the Real Property Law was intended to operate less broadly than its statutory model. (See Meehan, Comments, McKinney’s Forms, Real Property Practice [1984 Supp], § 6:12 [questioning the decision is Long Is. Opthalmologic Assoc. v West Broadway Professional Bldg., 88 AD2d 585, supra].)


In Gillman v Chase Manhattan Bank (73 NY2d 1 [1988]), it was said (at 10): "An unconscionable contract has been defined as one which 'is so grossly unreasonable or unconscionable in the light of the mores and business practices of the time and place as to be unenforcible according to its literal terms’ * * * A determination of <mask> generally requires a showing that the contract was both procedurally and substantively unconscionable when made — i.e., 'some showing of an "absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party” ’.” The Court further observed that a contractual provision may be so "outrageous as to warrant holding it unenforceable on the ground of substantive unconscionability alone” (at 12; see also, People v Two Wheel Corp., 71 NY2d 693 [1988]; Sablosky v Gordon Co., supra, at 138; Matter of Friedman, 64 AD2d 70, 84 [2d Dept 1978]).


<mask> of an arbitration agreement may exist in one or both of two forms: (1) procedural unconscionability, which refers to the circumstances surrounding the adoption of the arbitration provision, and (2) substantive unconscionability, which refers to the fairness of the arbitration provision itself. In re Halliburton , 80 S.W.3d at 571 ; Pilot Travel Centers, LLC v. McCray , 416 S.W.3d 168, 180 (Tex.App.-Dallas 2013, no pet.). Unconscionability has no precise legal definition because it is not a concept but a determination to be made in light of several factors. Delfingen , 407 S.W.3d at 798. In determining whether a contract is procedurally unconscionable, we must examine (1) the "entire atmosphere" in which the agreement was made; (2) the alternatives, if any, available to the parties at the time the contract was made; (3) the "non-bargaining ability" of one party; (4) whether the contract was illegal or against public policy; and (5) whether the contract is oppressive or unreasonable. Delfingen , 407 S.W.3d at 798 ; Ski River Development, Inc. v. McCalla , 167 S.W.3d 121, 136 (Tex.App.-Waco 2005, pet. denied). The totality of the circumstances must be assessed *315as of the time the contract was formed. Delfingen , 407 S.W.3d at 798 ; Ski River , 167 S.W.3d at 136. The circumstances surrounding the negotiations must be sufficiently shocking to compel the court to intercede. Delfingen , 407 S.W.3d at 798 ; Ski River , 167 S.W.3d at 136. We apply the abuse of discretion standard articulated in Delfingen to this issue. 407 S.W.3d at 799-800 (concluding that unconscionability is a legal question which is reviewed de novo by the appellate court, but the court must defer to the trial court's fact findings if they are supported by the evidence).


The majority's analysis of substantive <mask> is difficult to follow, largely due to its shifting approach to that issue. Initially, the majority seems to suggest that substantive unconscionability is irrelevant because there *152was "an unusually high degree of **709procedural unconscionability" here, and "an employee may not be coerced or misled into ... trad[ing]" the Berman process for "a litigation-like arbitration procedure," "[e]ven if" that procedure "may be an acceptable substitute for the Berman process in other circumstances." (Maj. opn., ante , 251 Cal.Rptr.3d at p. 719, 447 P.3d at p. 685.) Later, however, the majority expressly acknowledges that "[b]oth procedural and substantive unconscionability must be shown for the [unconscionability] defense to be established" (maj. opn., ante , 251 Cal.Rptr.3d at p. 725, 447 P.3d at p. 690) and asserts that at least "a relatively low degree of substantive unconscionability" is required to void the agreement, notwithstanding "the substantial procedural unconscionability here" (maj. opn., ante , 251 Cal.Rptr.3d at p. 729, 447 P.3d at p. 693). At one point, the majority indicates that " 'the [substantive] unconscionability inquiry focuses on whether the arbitral scheme imposes costs and risks on a wage claimant that make the resolution of the wage dispute inaccessible and unaffordable,' thus effectively blocking every forum for redress including arbitration itself." (Maj. opn., ante , 251 Cal.Rptr.3d at p. 724, 447 P.3d at p. 689.) At another point, the majority indicates that the question is whether the arbitral scheme "offer[s] employees an effective means to pursue claims for unpaid wages, and [does] not impose unfair costs or risks on them or erect other barriers to the vindication of their statutory rights." (Maj. opn., ante , 251 Cal.Rptr.3d at p. 732, 447 P.3d at p. 696.) At still another point, the majority states that the question is whether "the bargain" between the parties "was sufficiently one-sided as to render the agreement unenforceable" (maj. opn., ante , 251 Cal.Rptr.3d at p. 735, 447 P.3d at p. 698), i.e., "so unfairly one-sided that it should not be enforced" (maj. opn., ante , 251 Cal.Rptr.3d at p. 724, 447 P.3d at p. 688). Finally, shifting gears one last time, the majority declares in the final paragraph of its analysis that the substantively unconscionable "question" here "[u]ltimately" is whether the bargain was simply "unfair." (Maj. opn., ante , 251 Cal.Rptr.3d at p. 735, 447 P.3d at p. 698.)


The amended complaint contains 12 causes of action. Three concern usury, and four concern Racketeer Influenced and Corrupt Organizations Act (RICO) (18 USC § 1962). In sum, the claims are: (1) to vacate the judgments by confession because of usury “and other wrongful conduct”; (2) to obtain a judgment against defendants because of usury, and to vacate the agreements; (3) to obtain a judgment based on the overcharge of interest; (4) damages for the violation of the Licensed Lender Law (Banking Law § 340); (5) damages arising under RICO, subsection (a); (6) damages arising under RICO, subsection (b); (7) damages arising under RICO, subsection (c); (8) damages arising under RICO, subsection (d); (9) to obtain a judgment rescinding the agreements; (10) damages for fraudulent inducement; (11) damages for <mask>; and (12) damages for prima facie tort.


In this case the failure of Winks to deliver the ordered furniture within one week and the failure to refund 100% of Walker’s contract payment amounts to <mask> and misrepresentations (see, e.g., Hertz Corp. v Attorney-General of State of N. Y., 136 Misc 2d 420, 424 [1987] ["The concept has been employed primarily in the area of consumer protection, in an attempt to deal with the ' "neverending stream of consumer gypsters and fraudulent operators” ’ ”]).


UCC 2-316 (2) permits the exclusion or modification of a warranty of fitness by written and conspicuous disclaimer of warranty. Such disclaimers have been given effect particularly where the transaction is between experienced businessmen (Carbo Indus. v Becker Chevrolet, 112 AD2d 336 [2d Dept 1985]; Commercial Credit v CYC Realty, supra; United States Leasing Corp. v Comerald Assocs., supra). However, UCC 2-302 which renders unenforceable unconscionable contract provisions has been applied to warranty exclusions. (Electronics Corp. of Am. v Lear Jet Corp., 55 Misc 2d 1066 [Sup Ct, NY County 1967].) Subdivision (2) of that statute provides that where reliance is placed upon the alleged <mask> of a contract provision the parties shall be afforded a reasonable opportunity to present relevant evidence.