Summary
finding "no significant distinction" between complete exculpation and limitation "to a nominal sum," therefore limitation is ineffective
Summary of this case from Calvin Klein Ltd. v. Trylon Trucking Corp.Opinion
February 3, 1989
Appeal from the Supreme Court, Monroe County, Curran, J.
Present — Callahan, J.P., Denman, Green, Balio and Davis, JJ.
Order unanimously affirmed without costs. Memorandum: We hold that a defendant which maintains burglar alarm systems cannot contract to relieve itself from liability for acts constituting gross negligence. Agreements which purport to exempt a party from liability for willful or grossly negligent acts are contrary to public policy and are void (Gross v Sweet, 49 N.Y.2d 102), and there is no significant distinction between an agreement which completely relieves a party from liability and one which limits liability to a nominal sum (see, Federal Ins. Co. v Honeywell, Inc., 641 F. Supp. 1560, 1562-1563; see also, Nuri Farhardi, Inc. v Albany Ins. Co., 137 A.D.2d 429; cf., Feldman Furs v Jewelers Protection Servs., 134 A.D.2d 171; Alter v Advance Alarm Co., 131 A.D.2d 406).
We do not reach plaintiff's claim, raised for the first time on appeal, that the written agreement expired and that the limitation of liability clause did not become part of an implied-in-fact contract. Whether an implied-in-fact contract was formed and, if so, the extent of its terms, involves factual issues regarding the intent of the parties and the surrounding circumstances (see, New York Tel. Co. v Jamestown Tel. Corp., 282 N.Y. 365; Twitchell v Town of Pittsford, 106 A.D.2d 903, affd 66 N.Y.2d 824). Plaintiff's failure to raise this issue before Special Term precluded the defendant from submitting evidentiary material in opposition, and we conclude that the issue has not been preserved for appellate review (First Intl. Bank v Blankstein Son, 59 N.Y.2d 436, 447; Fuller v Martin, 109 A.D.2d 1060).