Summary
In Princetel, the plaintiff commenced an action against the defendants to recover damages for breach of contract and negligence in connection with the defendants' performance of certain land surveys (95 AD3d at 855).
Summary of this case from Meserole Hub LLC v. Solomon Rosenzweig, & Solomon Rosenzweig, Pe P.C.Opinion
2012-05-1
PRINCETEL, LLC, appellant, v. Christopher M. BUCKLEY, et al., respondents.
Gold, Stewart & Benes, LLP, Bellmore, N.Y. (James F. Stewart of counsel), for appellant. Marshall, Dennehey, Warner, Coleman & Goggin, New York, N.Y. (John K. McElligott and David J. Shannon of counsel), for respondents.
Gold, Stewart & Benes, LLP, Bellmore, N.Y. (James F. Stewart of counsel), for appellant. Marshall, Dennehey, Warner, Coleman & Goggin, New York, N.Y. (John K. McElligott and David J. Shannon of counsel), for respondents.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and JEFFREY A. COHEN, JJ.
In an action to recover damages for breach of contract and negligence, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Butler, J.), entered May 5, 2011, as granted that branch of the defendants' motion which was for summary judgment, in effect, limiting their liability to the plaintiff to the prices set forth in the subject contracts.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action against the defendants to recover damages for breach of contact and negligence in connection with the defendants' performance of certain land surveys. Each of the contracts between the parties includes a limitation of liability provision which purports to limit the defendants' liability to the plaintiff to the price that the plaintiff paid for the services. In the order appealed from, the Supreme Court, inter alia, granted that branch of the defendants' motion which was for summary judgment, in effect, limiting their liability to the plaintiff to the prices set forth in the subject contracts.
“In the absence of a contravening public policy, exculpatory provisions in a contract, purporting to insulate one of the parties from liability resulting from that party's own negligence, although disfavored by the law and closely scrutinized by the courts, generally are enforced, subject however to various qualifications” ( Lago v. Krollage, 78 N.Y.2d 95, 99, 571 N.Y.S.2d 689, 575 N.E.2d 107;see Uribe v. Merchants Bank of N.Y., 91 N.Y.2d 336, 341, 670 N.Y.S.2d 393, 693 N.E.2d 740;Colnaghi, U.S.A. v. Jewelers Protection Servs., 81 N.Y.2d 821, 823, 595 N.Y.S.2d 381, 611 N.E.2d 282;Goldstein v. Carnell Assoc., Inc., 74 A.D.3d 745, 746, 906 N.Y.S.2d 905). Where the language of an exculpatory agreement expresses in “unequivocal terms” the intention of the parties to relieve a defendant of liability for its own negligence, the agreement will be enforced ( Lago v. Krollage, 78 N.Y.2d at 100, 571 N.Y.S.2d 689, 575 N.E.2d 107). However, such an exculpatory agreement will be viewed as wholly void “where it purports to grant exemption from liability for willful or grossly negligent acts or where a special relationship exists between the parties such that an overriding public interest demands that such a contract provision be rendered ineffectual” ( id.; see e.g. Schwartz v. Martin, 82 A.D.3d 1201, 1203, 919 N.Y.S.2d 217;Gentile v. Garden City Alarm Co., 147 A.D.2d 124, 131, 541 N.Y.S.2d 505). To constitute gross negligence, a party's conduct must “ ‘smack[ ] of intentional wrongdoing’ ” or “evince[ ] a reckless indifference to the rights of others” ( Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 554, 583 N.Y.S.2d 957, 593 N.E.2d 1365, quoting Kalisch–Jarcho, Inc. v. City of New York, 58 N.Y.2d 377, 385, 461 N.Y.S.2d 746, 448 N.E.2d 413;see Ryan v. IM Kapco, Inc., 88 A.D.3d 682, 683, 930 N.Y.S.2d 627;Goldstein v. Carnell Assoc., Inc., 74 A.D.3d at 746–747, 906 N.Y.S.2d 905).
Here, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment, in effect, limiting their liability to the plaintiff to the prices set forth in the subject contracts ( see Schietinger v. Tauscher Cronacher Professional Engrs., P.C., 40 A.D.3d 954, 955–956, 838 N.Y.S.2d 95). In support of their motion, the defendants established, prima facie, that the complaint does not allege that the defendants performed the work under the contracts in a willful or grossly negligent manner and that the complaint does not allege any conduct by the defendants that would support such a claim ( see Weidenbenner v. Stern, 263 A.D.2d 453, 454, 692 N.Y.S.2d 709).
In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendants' alleged conduct went beyond ordinary negligence and satisfied the gross negligence standard ( see Goldstein v. Carnell Assoc., Inc., 74 A.D.3d at 747, 906 N.Y.S.2d 905). Moreover, contrary to the plaintiff's contention, the subject branch of the defendants' motion was not premature. The plaintiff failed to demonstrate that additional discovery may lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the defendants ( seeCPLR 3212[f]; Martinez v. Kreychmar, 84 A.D.3d 1037, 1038, 923 N.Y.S.2d 648).
The plaintiff's remaining contentions are without merit.
Accordingly, the limitation of liability provisions in the subject contracts are enforceable.