Summary
In Sue Sam Mfg. Co. v United Protective Alarm Sys. (119 A.D.2d 664), the failure of the alarm company to install two motion detectors as required by the contract did not constitute gross negligence, and the exculpatory clause was therefore controlling.
Summary of this case from World Trade v. Lido KnittingOpinion
April 14, 1986
Appeal from the Supreme Court, Kings County (Monteleone, J.).
Order dated July 3, 1985 reversed, on the law, and order dated March 25, 1985 vacated, motion granted, and complaint dismissed.
The defendant is awarded one bill of costs.
New York courts have repeatedly and consistently enforced exculpatory clauses in contracts for the installation, leasing, and servicing of alarm systems, and have dismissed claims for breach of these contracts where the plaintiff seeks to recover damages for losses sustained as a result of burglaries (see, Florence v. Merchants Cent. Alarm Co., 51 N.Y.2d 793; Rinaldi Sons v. Wells Fargo Alarm Serv., 39 N.Y.2d 191; Dubovsky Sons v Honeywell, Inc., 89 A.D.2d 993). Special Term attempted to distinguish prior cases which enforced such exculpatory clauses by pointing out that in this case the defendant allegedly breached the contract at its inception (by failing to install two "motion detectors", as required by the contract), rather than when the loss occurred or by failing "to perform services pursuant to the contract". We conclude that there is no legal basis for such a distinction, since exculpatory clauses have been enforced where the defendant is alleged to have breached the contract at its inception, i.e., by negligently installing the alarm equipment (see, Advance Burglar Alarm Sys. v. D'Auria, 110 A.D.2d 860). Furthermore, the exculpatory clause of the contract explicitly covers the "failure to perform any obligation under this agreement".
The record reveals that the plaintiff, in opposing the defendant's motion for summary judgment, has totally failed to present any evidence in admissible form which raises an issue of fact as to whether the defendant's conduct constituted gross negligence, thereby requiring dismissal of the second cause of action seeking damages for gross negligence. The plaintiff cannot rely on conclusory assertions of gross negligence, contained in the pleadings, to defeat a motion for summary judgment (see, Capelin Assoc. v. Globe Mfg. Corp., 34 N.Y.2d 338). Lazer, J.P., Niehoff, Kooper and Spatt, JJ., concur.