Opinion
May 1, 1969
Order, entered January 29, 1969, unanimously affirmed, without costs and without disbursements. Although, under the circumstances, the order represents a proper exercise of Special Term's discretion as a pendente lite direction in this proceeding brought pursuant to subdivision 12 of section 63 Exec. of the Executive Law, we note that the respondent is entitled to a hearing, with the opportunity to present evidence on the issues raised in the proceeding, including on the question of the alleged unconscionability of the particular clauses in the subject contract. (Cf. Uniform Commercial Code, § 2-302; 1 Anderson's Uniform Commercial Code, § 2-302:5.) In fact, the order of Special Term provides for an early trial of the issues, and certainly, the findings and conclusions of Special Term made on the return day of the proceeding, without an evidentiary hearing, should not be accepted as binding upon the trial court. The parties should proceed diligently toward an early trial, and if the petitioner should unreasonably delay the prosecution of the proceeding, the respondent may move at Special Term for modification of the provisions of the order restraining use of initial payments made by patients.
Concur — Stevens, P.J., Eager, Tilzer, McGivern and McNally, JJ.