Opinion
May 6, 1986
Appeal from the Supreme Court, New York County (Elliott Wilk, J.).
Plaintiff diamond dealer stored valuable goods in a safe-deposit box it leased in a vault owned by defendant Midtown Vault Corp. In this action plaintiff seeks to recover damages for the loss of valuable goods from this box, several days after it first rented it. The second cause of action alleges that the loss was caused by the gross negligence of Midtown in that Midtown employed one Abraham Ticknor as a security guard even though it had actual notice that Ticknor had allegedly misappropriated goods of others from the vault.
Defendant was granted summary judgment dismissing this cause of action on the basis of an exculpatory clause in plaintiff's vault box rental contract which provides that the lessee releases Midtown from any claims of loss arising out of ordinary negligence.
While such exculpatory clauses are enforceable, they are subject to strict judicial scrutiny. The clause is valid only to the extent that it releases defendant from liability for ordinary negligence, according to its terms, and the courts will not enforce an agreement to the extent that it purports to grant an exemption from liability for willful or grossly negligent acts. (Gross v Sweet, 49 N.Y.2d 102, 106; see also, Kalisch-Jarcho, Inc. v City of New York, 58 N.Y.2d 377, 384-385; Graphic Scanning Corp. v Citibank, 116 A.D.2d 22.)
Inasmuch as plaintiff alleges that Midtown's continued employment of Ticknor as a security guard in charge of the vault in light of its knowledge of his alleged prior conversions would constitute conduct so reckless as to be deemed "gross negligence", the exculpatory clause is inoperative and summary judgment should have been denied.
We have examined the other points raised on this appeal and cross appeal and find them without merit.
Concur — Kupferman, J.P., Sullivan, Lynch, Rosenberger and Ellerin, JJ.