Judgment unanimously reversed on the law without costs, defendant's motion granted, plaintiff's motion denied and complaint dismissed. Memorandum: Plaintiff's decedent (plaintiff), a commercial farmer who owned a 170-acre farm in Fulton, New York, purchased lettuce seed from defendant in 1984; plaintiff expected the seeds to yield 16,000 cases of lettuce but instead the yield was only 3,822 cases. Plaintiff commenced this action seeking to recover over $45,000 for the loss of his crop and an additional $15,000 for loss of good will. Defendant's answer asserted nine affirmative defenses, among them that the contract disclaimed any implied warranty and that it limited recovery on the express warranty to the purchase price of the seed. After a jury trial, plaintiff was awarded the amount sought for loss of his crop, based on a jury finding that the limitation of damages was unconscionable under UCC 2-302 (1).
Defendant correctly contends on appeal that the court erred in submitting to the jury the question of whether the limitation of damages clause was unconscionable because unconscionability is a question of law to be decided by the court (see, Sablosky v Gordon Co., 73 N.Y.2d 133, 138). Although that error was harmless because the court made its own finding that the clause was unconscionable, we find that the court erred in so finding, and thus we find that reversal is required. Plaintiff, a commercial farmer, failed to overcome the presumption of conscionability (see, Cayuga Harvester v Allis-Chalmers Corp., 95 A.D.2d 5, 20-21).