This action arises out of alterations that Defendants performed in their unit, by joining together two apartments, the "C" and "D" lines. Plaintiff alleges that these alterations have damaged the structural integrity of the building.

In this motion, Plaintiff cooperative corporation (the Corporation) moves, pursuant to CPLR 3212, for an order dismissing Defendants' seventh, eighth and nine affirmative defenses, which allege, respectively, that the Proprietary Lease and Escrow Agreement are unconscionable contracts, that they were signed under duress, and they are "contracts of adhesion." Specifically, the seventh affirmative defense states that the contracts were unconscionable because they were "form contracts required for each resident who resided in the building"; that Defendants "lack a meaningful choice of whether or not to sign"; that "certain terms...are unreasonably favorable to the plaintiffs"; and that Defendants were required to provide a "security deposit prior to alterations." The eighth affirmative defense states that the contracts were signed under duress essentially because if Defendants did not sign the unconscionable contracts, the alteration could not take place and they would be "forced to give up their legally held ownership and use rights of their apartments." The ninth affirmative defense states that the contracts were contracts of adhesion, as a result of the Corporation's superior bargaining power and because the contracts were non-negotiable and were on a "take-it-or-leave-it" basis.

The motion is granted. Unless the contracts contained "terms which are unreasonably favorable to the plaintiffs" or, Defendants demonstrate that the Corporative singled them out for [*2]different and unfair treatment ^[FN1], the defenses must be dismissed. Every single contract with respect to a Cooperative Corporation is a non-negotiable form contract which every shareholder must sign. In fact, it would be improper for a Cooperative to prefer one shareholder over another by allowing a particular shareholder to negotiate more favorable terms (see BCL §501 [c]). There is nothing unusual about a Corporation requesting security prior to alterations (see Lorne v 50 Madison Ave LLC, 65 AD3d 879 [1st Dept 2009] [Corporation acted within the scope of its authority by requesting payment of $15,000 to cover its retention of counsel to review alteration documents]), and in fact, it is prudent for a Corporation to do so. Neither have Defendants demonstrated duress, and if they could, merely by demonstrating that they had to sign certain form contracts before alterations could take place, every single Proprietary Lease and Escrow Agreement in New York City could be set aside. The fact that there is inequity of bargaining power is not sufficient to support a conclusion that a contract is unenforceable (see Brower v Gateway 2000, Inc., 246 AD2d 246 [1st Dept 1998] [even though "the parties clearly do not possess equal bargaining power, this factor alone does not invalidate the contract as one of adhesion"]). As to particular "examples of the terms of the lease. . . which are unconscionable" they all appear to be garden variety provisions of a Proprietary Lease,^[FN2] the most offensive being "under Article 1, Paragraph 11 in the proprietary leases, the lessor shall be permitted entry into the apartment at anytime." However, that provision actually permits the Lessor and agent to enter the apartment "at any reasonable hour of the day, and workmen may enter at any time, when authorized by the Lessor, or the Lessor's agents, to make or facilitate repairs" and if the Lessee does not actually permit entry at any time, "the Lessor or the Lessor's agents may forcibly enter the apartment at any time, when for any reason an entry therein shall be necessary or permissible." Although this provision raises some concern, the Court will not engage in the collateral issue of construing whether it would allow the Corporation to enter Defendants' apartment, without their consent, during a reasonable [*3]hour of the day, when it is not in connection with repair work, or when it is in connection with non-emergency repair work. This provision is not at issue in this case, as Plaintiff did not invoke it, but rather made a motion for a court order to permit access for emergency repairs. Essentially, Defendants, who have chosen to live in a cooperative, object to the very nature of a cooperative corporation, but that cannot be the basis for their affirmative defenses. Contrary to Defendants' position, Plaintiff is not re-litigating the issue, as the Court granted Defendants leave to amend for the purpose of supporting their conclusory allegations with facts (see Baskin and Sears, P.C. v Lyons, 188 AD2d 307 [1st Dept 1992] [decision granting leave to amend answer to assert affirmative defenses and counterclaims was not law of the case]). The Court never addressed the issues Defendants claim that Plaintiff is now seeking to re-litigate.

It is hereby

ORDERED that the motion is granted and Defendants' seventh, eighth and nine affirmative defenses are dismissed; and it is further

ORDERED that the parties appear for trial on May 2, 2011 at 10am to pick a jury.

This Constitutes the Decision and Order of the Court.

Dated: January 14, 2011

ENTER:

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