Suits v. Suits

266 A.D.2d 813, 698 N.Y.S.2d 203

Opinions

—Order affirmed without costs. Memorandum: We affirm for reasons stated in the decision at Supreme Court (Tormey, III, J.). We add that, where the basis for acceleration of a debt evidenced by an installment note “is trivial or inconsequential, the forfeiture may be viewed as an unconscionable penalty and equitable principles come into pla/’ (Tunnell Publ. Co. v Straus Communications, 169 AD2d 1031, 1032). Inasmuch as plaintiff would not have been prejudiced by acceptance of defendants’ tender of a cure, the court properly concluded that plaintiffs refusal to accept a cure and attempted enforcement of the acceleration clause were unconscionable (cf., Fifty States Mgt. Corp. v Pioneer Auto Parks, 46 NY2d 573, 579, rearg denied 47 NY2d 801).

All concur except Scudder, J., who dissents and votes to reverse in the following Memorandum.