(dissenting). In the underlying action to recover damages for breach of contract, the principal issue which divides this court is whether the prior determination of the Supreme Court, Nassau County (Robbins, J.), in two related contract actions, GTF Mktg. v Dodge Home Remodeling Corp. and GTF Mktg. v Marjo Sys. (see, GTF Mktg. v Dodge Home Remodeling Corp., 110 AD2d 818; GTF Mktg. v Marjo Sys., 110 AD2d 818) bars the instant claim, i.e., whether the alternative finding by the court in those consolidated actions that enforcement of the underlying contracts would be “shocking to the conscience of the Court”, precludes the plaintiff from attempting to enforce a similar contract as against the defendant at bar. In my view, this question should be answered in the negative.
Although I do not take issue with the broad principles of law espoused by the majority, I do take exception to their applicability to the facts of the instant case, for, in my opinion, the only issue decided by Special Term on the question of “unconscionability” in the Dodge and Marjo cases (supra) was that the quality of the plaintiff’s performance in those cases was so defective that enforcement of the contracts would, under the facts presented, be shocking to one’s sense of fairness. Thus, it was specifically stated by Justice Robbins that “with regard to shocking the conscience of the Court, it is the claim, the underlying claim under the circumstances of this case that I want to address that is shocking to the conscience of the Court” (emphasis supplied).
This conclusion, as the majority so aptly notes, was, in turn, based upon Special Term’s observation that there was “no evidence [before it] * * * to support a finding that the alleged prospect or prospective home owners [at issue in that litigation] at any time expressed an[y] interest [in] having any work done” for them, a finding which is fully consistent with the court’s further determination that the plaintiff, GTF Marketing, had failed to perform its contract to supply bona fide “leads” to the respective defendants and that the foregoing defect was fatal to its right to recover. By way of contrast, it may well be established upon the trial of this action (1) that the “leads” provided to the defendant at bar were genuine, (2) that their quality was such as to confer a substantial benefit upon the defendant, and (3) that any diminution in the value of those “leads” was directly attributable to the manner in which the defendant approached them. Accordingly, since Special Term’s alleged pronouncement *93of “unconscionability” in those cases was specifically predicated upon the nature of the facts before it, and since the facts of those cases, including the quality of the plaintiff’s performance, must necessarily differ from the facts of this case given the existence of separate contracts to provide separate lists of potential customers for different home improvement services, it is my belief that the dismissal of the complaints in the Dodge and Marjo actions is not a bar to the maintenance of this action.
While the unconscionability of a contract is admittedly a question of law for the court to determine (see, e.g., Wilson Trading Corp. v David Ferguson, Ltd., 23 NY2d 398, 403; State of New York v Wolowitz, 96 AD2d 47, 68; Industralease Automated & Scientific Equip. Corp. v R.M.E. Enters., 58 AD2d 482, 488-489), I would merely observe that the underlying finding in both the Dodge and the Marjo cases (supra) is not strictly of this nature, and was predicated, instead, upon the proven inadequacy of the plaintiff’s performance. Moreover, even if properly viewed as a de jure finding of “unconscionability”, it does not necessarily follow that a finding of unconscionability in a contract action between A and B requires an identical conclusion with regard to a separate, albeit similar, contract entered into between A and C. Generally, such questions cannot be resolved in a vacuum. As Justice Hopkins observed inthe Dissolution of Wiedy’s Furniture Clearance Center Cothe Dissolution of Wiedy’s Furniture Clearance Center Co Industralease Automated & Scientific Equip. Corp. v R.M.E. Enters, (supra, at p 489), “The test [of unconscionability] has been * * * defined ‘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’, and characterized ‘by a gross inequality of bargaining power’ (Williams v Walker-Thomas Furniture Co., 350 F2d 445, 449).” In fact, as this court has had occasion to note in its recent decision in State of New York v Wolowitz (96 AD2d 47, 68, supra [Gibbons, J.]), “While there may be extreme cases where a contractual term is so outrageous and oppressive as to warrant a finding of unconscionability irrespective of the contract formation process (see, e.g., Jones v Star Credit Corp., 59 Misc 2d 189, 192), such cases are the exception” (emphasis supplied). Contracts, as here, calling for the agreed payment of only $10 per “lead” for access to potential purchasers of valuable home improvement services plainly does not fall within this limited exception, as there can be little doubt that had the plaintiff at bar established due performance of its prior agreements in either the Dodge or Marjo cases, it would have recovered a judgment therein.
In short, where, as in the case at bar, the contracts in question are legally distinct documents, covering different subjects, and *94negotiated at different times, by different people, in presumptively different bargaining positions, it does not necessarily follow that a so-called finding of “unconscionability” in one instance will be determinative of a subsequent cause of action to enforce a separate although similar contract between different parties. This is especially so where, as here, the finding by the first court was apparently based solely upon the nature of the plaintiff’s performance under the contracts then at issue and the quality of the results achieved. The quality of plaintiff’s performance under the contract at bar has yet to be determined, and, as if to add insult to injury, knowledge of the facts upon which the foregoing is to be determined presently lies exclusively with the moving defendant (see, CPLR 3212 [f]). The pivotal issue in the instant case is not, as the majority maintains, the manner in which the list of prospective customers was compiled by the plaintiff, but rather the quality of that compilation as a viable source of “leads”. This knowledge, at present, is beyond plaintiff’s reach.
Zabriskie v Zoloto (22 AD2d 620, 624) is not to the contrary, as the court in a prior declaratory judgment action in that case had specifically found that the plaintiff, a lawyer, “had no meat damage * * * clients on an individual basis and that he had no fee-sharing agreement with the defendant with respect to any such claimants” (emphasis supplied). Accordingly, a subsequent cause of action between the same parties predicated upon plaintiff’s alleged entitlement to counsel fees based on his claimed representation of other meat damage clients was deemed barred. No comparable finding exists in the case at bar, as Special Term’s conclusion in the Dodge and Marjo cases (supra) that there was “no evidence * * * that the alleged prospect or prospective home owners at any time expressed an[y] interest [in] * * * having any work done” was necessarily restricted to the prospective consumers of the home improvement products at issue in those actions, and is not tantamount to a finding that no survey was ever conducted. Moreover, the very fact that the purported finding of unconscionability is directly related to the quality of the performance as demonstrated in those actions only serves to buttress the present suggestion that the quality of the performance in the instant case is the relevant consideration and has yet to be determined.
Turning briefly to the question of the sufficiency of the moving affidavits, I would simply note that “[t]he burden rests upon the litigant claiming the benefit of [a] former judgment to prove that the issue he now urges was involved in the prior action *95either by actual determination or necessary implication” (Chisholm-Ryder Co. v Sommer & Sommer, 78 AD2d 143, 144; Capital Tel. Co. v Pattersonville Tel. Co., 56 NY2d 11, 17-18), and that where, as here, the proponent of a motion for summary judgment has failed to establish his right to the relief requested as a matter of law (CPLR 3212 [b]), the motion will be denied, regardless of any alleged inadequacy in the opposing papers (Winegrad v New York Univ. Med. Center, 64 NY2d 851; Matter of Redemption Church of Christ of Apostolic Faith v Williams, 84 AD2d 648; Walski v Forma, 54 AD2d 776; Stelick v Gangl, 47 AD2d 789; Greenberg v Manlon Realty, 43 AD2d 968). Upon such an analysis, it is not necessary to reach the further question of whether an attorney’s affirmation addressing an issue of law which is the basis of a motion for summary judgment and opposing the same based upon matters appearing on the face of the record is legally sufficient to defeat such a motion (cf. Federal Deposit Ins. Corp. v Kassel, 72 AD2d 787; Comptroller of State of N. Y. v Gards Realty Corp., 68 AD2d 186; Tuttle v Juanis, 54 AD2d 589).
Since the defendant, in my view, has failed to establish that the issue as to which preclusion is sought is identical to any of the issues which were decided adversely to the plaintiff in the prior actions (see, Capital Tel. Co. v Pattersonville Tel. Co., 56 NY2d 11,17, supra; Kartiganer Assoc. v Wehran Eng., 92 AD2d 911, 912, lv denied 59 NY2d 603), Special Term did not err in denying its motion for summary judgment. The order appealed from should, therefore, be affirmed.
Mangano and Brown, JJ., concur with Titone, J. P.; Gibbons, J., dissents and votes to affirm the order appealed from, with an opinion.
Order of the Supreme Court, Suffolk County, dated June 30, 1983, reversed, on the law, with costs, defendant’s motion for summary judgment granted, and complaint dismissed.