Opinion
July 18, 1994
Appeal from the Supreme Court, Queens County (Graci, J.).
Ordered that the order is affirmed, with costs.
Although New York law generally enforces contractual provisions in alarm contracts absolving a party from its own negligence, public policy prohibits a party's attempt to escape liability, through a contractual clause, for damages occasioned by "grossly negligent conduct" (Colnaghi, U.S.A. v. Jewelers Protection Servs., 81 N.Y.2d 821, 823; see also, Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 553-554; Idone v. Pioneer Sav. Loan Assn., 159 A.D.2d 560, 561; Gentile v. Garden City Alarm Co., 147 A.D.2d 124). In this context, gross negligence is conduct that "evinces a reckless disregard for the rights of others or `smacks' of intentional wrongdoing" (Colnaghi U.S.A. v. Jewelers Protection Servs., supra, at 823-824; see also, Sommer v Federal Signal Corp., supra, at 554).
We find that whether Honeywell's employee performed an adequate inspection of the premises and, if not, whether such failure to inspect constituted gross negligence, present triable issues of fact that preclude summary judgment. On a motion for summary judgment, the court's role is to determine whether there is a material factual issue to be tried, not to resolve it (see, Sommer v. Federal Signal Corp., supra, at 554; Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404). Rosenblatt, J.P., Lawrence, Copertino and Joy, JJ., concur.